REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
								Case No: A304/2005
In the matter between:

SHARIEF ISAACS 					   		   First Appellant
ALLAN SOLOMONS       					       Second Appellant

and

THE STATE								        Respondent

Coram:		YEKISO J

Heard:		16 September 2005
Delivered:		23 September 2005

Summary: 
Accomplice: Evidence by accomplice – absence of corroboration implicating accused – safeguard against risk of wrong conviction could be found in falsity of evidence by accused in the event the accused elects to testify.
Aggravating circumstances: Onus lies on the State throughout to prove its case beyond reasonable doubt including presence or otherwise of aggravating circumstances – once aggravating circumstances are alleged, onus on the State to prove these over and above other elements of the offence.

JUDGMENT DELIVERED ON 23 SEPTEMBER 2005

YEKISO, J

[1]	The appellants and two other persons were charged in the regional court, Cape Town with the crime of robbery with aggravating circumstances.   The charge relates to the robbery of one Moira Neethling (“Neethling”), an employee of the Bothasig branch of Super Plants.   The State alleged that the robbery was committed at Bothasig, in the regional division of the Cape.   The robbery was alleged to have been committed on Monday, 11 March 2002.   The two other persons who were alleged to have been involved in the commission of the offence are Ingrid Carelse (‘Carelse”), also an employee of Super Plants, Bothasig and one Faizel Salie (“Salie”).   The State further alleged that aggravating circumstances, as defined in section 1 of the Criminal Procedure Act, 51 of 1997, were present when the offence was committed.  It was further alleged by the State that the provisions of the Criminal Law Amendment Act, 105 of 1997, which prescribes certain minimum sentences in the event of a conviction, were applicable.

[2]	In a trial which ensued the two appellants, who were both legally represented at the time, together with Carelse, who appeared as accused number three in the court below, pleaded not guilty to the charge against them and elected not to disclose the basis of their defence in terms of section 115 of the Criminal Procedure Act.   They made no admissions in terms of section 220 of the Criminal Procedure Act.   The evidence linking both the appellants to the commission of the crime in question was circumstantial.   After hearing evidence the magistrate found, by way of inferential reasoning based on circumstantial evidence that the State succeeded to prove the guilt of the two appellants, together with the said Carelse, beyond reasonable doubt.   All three accused were convicted accordingly.   The magistrate, having found that substantial and compelling circumstances were present, imposed a sentence of eight (8) years imprisonment in respect of each accused.  

[3]	Salie, the fourth person to have been charged, was convicted and sentenced in an earlier separate trial on basis of a sentencing agreement concluded in terms of section 105A of the Criminal Procedure Act.   In the instance of this matter and after conviction and sentence, there was noted an appeal on behalf of both the appellants.   In the instance of the first appellant the appeal is against the finding of aggravating circumstances and, consequently the sentence imposed whereas, in the case of the second appellant, the appeal is against both conviction and sentence.   Carelse did not note an appeal either against conviction or against the sentence imposed.   In this appeal, Mr Caiger and Mr Ballem, both members of the Cape Bar, appeared for the first and the second appellants respectively, whilst Ms Johnson of the Office of the Director of Public Prosecutions appeared for the respondent.   The appeal was argued before us on Friday, 16 September 2005.   After hearing argument on behalf of the parties, we reserved judgment and indicated that same would be delivered shortly.   In the paragraphs which follow is our judgment in the matter incorporating reasons for the order we make.

[4]	In the instance of the first appellant it is conceded on his behalf that the inference drawn by the magistrate, based on circumstantial evidence, as it is, is correct.   It is nonetheless submitted on behalf of the first appellant that he (first appellant) ought not to have been convicted of robbery with aggravating circumstances.   The first appellant, so the submission goes, ought simply to have been convicted of robbery, it being contended on his behalf  that the State failed to prove that aggravating circumstances were present when the offence was committed and that, in view thereof, the first appellant ought simply to have been convicted of robbery.   It is further submitted on behalf of the first appellant that should this contention be upheld, then the sentence imposed by the magistrate, of necessity, would be disproportionate and, in that event, a need to interfere with the sentence so imposed is justified.   In a nutshell, therefore, absent aggravating circumstances, a lesser sentence should be imposed.

[5]	On behalf of the second appellant it is submitted that Salie is a single witness and, by his own admission, an accomplice whose evidence  should be treated with caution, the crucial question being whether the evidence of Salie should be accepted as opposed to that of the second appellant.   It is further submitted on behalf of the second appellant, that a Court, in order to sustain a guilty verdict, should look for corroboration as a safeguard against a risk of a wrong conviction and that such corroboration should be corroboration implicating the second appellant.   As regard the appeal against sentence, it is further submitted on behalf of the second appellant that the magistrate misdirected herself in not taking into account the minimal role played by the second appellant in the commission of the offence.

[6]	In proof of its case, the State tendered the evidence of three witnesses in the persons of Neethling, Salie and Cornelius Frank, the investigating officer in the matter whilst the appellants, in turn, testified in their own defence. 

[7]	It is common cause that Neethling, whilst in company of Carelse, was robbed of a handbag and another bag containing cash in an amount of R56,000.00.   It is further common cause, and on basis of his own admission, that the actual robbery was committed by Salie who admittedly was an accomplice when he tendered evidence at the trial in the court below.   It is further common cause that shortly before the commission of the robbery the first and the second appellant, together with Salie, had travelled together to Bothasig in a Toyota Avante motor vehicle driven by the second appellant.   What is in dispute though is whether the quantum of evidence tendered is sufficient to sustain a conviction in respect of the second appellant, and if so, whether aggravating circumstances have been proved.

THE EVIDENCE OF SALIE
[8]	The material aspects of the evidence by Salie are that during the evening of Sunday, 10 March 2002, the second appellant telephoned him at home; that when the second appellant could not find him at home, he left a message that he (the second appellant) would call the following day to pick him up; that the second appellant did indeed pick him up at home the following day, it having been Monday, 11 March 2002; that from his residence they proceeded to the residence of Carelse (accused number3) where he was informed of the planned robbery to be committed at the Bothasig branch of Super Plants later that day; that he was co-opted in the scheme of the planned robbery and was not present or involved when the plan was conceived; that the planned robbery would be committed on the employees of the Bothasig branch of Super Plants in the persons of Neethling and Carelse; that according to plan, and whilst in Bothasig, Carelse would telephone the first appellant as soon as they were ready to depart for the bank; that Carelse and Neethling are part of the scheme of the planned robbery and that Salie would strike shortly after Neethling and Carelse would have got into the car (a Fiat Uno) on their way to the bank.   The second appellant gave him a steak knife which he concealed up his sleeve.   After all was planned, the first and the second appellant, together with Salie, left for Bothasig.

[9]	Once the group had reached Bothasig they drove past the Bothasig branch of Super Plants; they inspected the premises of Super Plants, the Fiat Uno which Carelse and Neethling would use to go to the bank and as well as the route Salie would follow after committing the robbery.   The first and the second appellant would pick him up along this route and get away from the scene; they proceeded to the parking area in the vicinity of Shoprite; whilst in the parking area, they left the vehicle in which they were travelling. 

[10]	Once the plan was in place, the first appellant received a telephone call from Carelse; after a short conversation the first appellant reported that Neethling and Carelse were ready to leave Super Plants for the bank.   Salie left the group as planned to go and execute the planned robbery.   He had with him the steak knife given to him by the second appellant.   It later emerged in the course of evidence that Salie, when leaving the rest of the group to execute the planned robbery, had left behind his false teeth, a cellphone and a set of keys.   These were later handed over to the police after the group had been arrested and made their first court appearance.

[11]	When Salie got to the Fiat Uno, Carelse and her co-employee, Neethling, had not yet left the shop.   After waiting for a short while not far from the car, the two emerged from the shop, climbed into the Fiat Uno and shortly thereafter Salie pounced on them.   According to plan, the bag containing cash would be on the floor between the legs of Carelse and Carelse’s handbag, which he also had to take according to plan, was in between the two front seats.   Carelse was seated on the front passenger seat and Neethling behind the wheel.

[12]	They had hardly been in the car when Salie opened the left front passenger door and grabbed the handbag, but not without resistance from Neethling.   A tussle ensued.   In this tussle a steak knife hidden up Salie’s right sleeve slipped out in such a way that the blade became visible to Neethling.   Salie then took the knife with his left hand to gain control of it.   On seeing the knife blade Neethling let go of the bag.   Salie then took the money bag and Neethling’s handbag and ran down the road.   Neethling vigorously applied her hooter and, quite fortuitously, a police vehicle appeared on the scene.   Salie, who either stumbled or decided that getting away was not worth it, gave himself up.    Salie was arrested and virtually all the money in an amount of about R56,000.00 was recovered, save for an amount of R 10.00.

[13]	Once arrested Salie spilled the beans.   He implicated both the appellants and Carelse as having put him up to it.   Salie related how the appellants and he went to the shopping centre next to Super Plants, had a pie and awaited a telephone call from Carelse.   Salie explains in evidence that he was manipulated by the appellants into doing their dirty work.   He further states in his evidence that he was promised R20,000.00 and the fastest car in Mitchells Plain to execute the robbery.

THE EVIDENCE OF THE SECOND APPELLANT
[14]	The second appellant confirms the telephone call he made to Salie during the evening of Sunday, 10 March 2002; that when he could not find Salie, he left a message that he would call to pick him up at 09:00 the following day, that is Monday, 11 March 2002.   The second appellant further confirms in his evidence that he went to pick up Salie the Monday morning at 09h00.   However he denies that any robbery was planned.   According to him Salie was supposed to help him repair his (the second appellant’s) vehicle that Monday.   He denies ever having resided at the residence of Carelse in Rocklands, Mitchells Plain.   He denies having given Salie a steak knife.   However, he recognised the steak knife when it was handed up in court as an exhibit.   He recalls having seen a similar steak knife at the residence of Carelse at Rocklands, Mitchells Plain.   He saw Carelse using a similar steak knife in her kitchen a couple of times.   His wife, Fazleen Solomons, had a similar set of steak knives.

[15]	Whilst they were still at the residence of Carelse, the first appellant received a telephone call from Carelse.  Carelse needed the first appellant to meet her at work to collect a computer and cash to buy food for the evening at home.   Later in the day they proceeded to Bothasig.  He denies any discussion about robbery whilst on their way to Bothasig.   He confirms that once they got to Bothasig, they went to park in the parking area next to Shoprite.    Whilst in the parking area he received a telephone call from his wife who, incidentally, was employed at the Parklands branch of Super Plants, that she had fallen ill and that he should go and pick her up at work to take her to the doctor. 

[16]	Once he had received a telephone call from his wife, they left the parking area at Shoprite to go and pick up his wife at the Parklands branch of Super Plants.   As he was driving off Salie, suddenly and unexpected, jumped out of the car and said he would be returning soon.   They waited for about half an hour and when Salie did not return they then decided to leave without him.   They did not go to Super Plants, Bothasig as they had intended initially.
 
[17]	Once they had collected his wife at Super Plants, Parklands, the first appellant insisted that they return to Super Plants, Bothasig to collect Carelse’s computer and money to buy food, but Carelse was not at Super Plants, Bothasig when the group returned there.   They were informed that Carelse and Neethling had been robbed earlier in the day and that she probably could still have been at the Police Station.  The first appellant was present during this conversation, despite evidence by the first appellant that only later in the evening and at the residence of Carelse did he hear for the first time about the robbery.   It is also worth mentioning that the first appellant denied in his evidence that, after they had been to Super Plants, Parklands, they returned to Bothasig.   These are then the salient features of the evidence by the second appellant.   The determination of this appeal depends on which of the two versions, that of Salie or the second appellant, is acceptable.   To do this will to a large extent involve a credibility finding.

APPLICABLE PRINCIPLES
[18]	The only evidence implicating the second appellant is that of Salie.   At the time Salie testified in the court a quo he had already been convicted and sentenced in respect of the same offence with which the second appellant was charged. Furthermore, at the time Salie gave evidence, not only was he a single witness in as far as the second appellant’s participation in the offence is concerned, he also was, by his own admission, an accomplice.
 
[19]	It is trite that the evidence of a single witness must, in order to lead to a successful conviction, be clear and satisfactory in every material respect.   De Villiers JP puts the position as follows in R v Mokoena 1932 OPD 79 at 80:
“… the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by s284 of the Criminal Procedure Act, 31 of 1917, but in my opinion that section should only be relied upon where the evidence of the single witness is clear and satisfactory in every material respect.”   (See also D T Zeffert et al: The South African Law of Evidence p799)

[20]	Not only is Salie a single witness in the instance of this matter, he also is,   for all intents and purposes, an accomplice.   As for the evidence of an accomplice the classic statement by Schreiner JA in R v Ncanana 1948 SA 399(AD) at 405 is illustrative:
“… The cautious court or jury will often properly acquit in the absence of other evidence connecting the accused with the crime, but no rule of law or practice requires it to do so.   What is required is that the trier of fact should warn himself, or, if the trier is the jury, that it should be warned of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth.”
The learned Judge of Appeal proceeds as follows at the bottom of the same page up to the top of p406:
“The risk that he may be convicted wrongly, although sec 284 (of the Criminal Procedure Act, 31 of 1917) has been satisfied, will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused.   But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice.   And it will be reduced, even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice, and rejection of the accused is in such circumstances only permissible where the merits of the former as a witness and the demerits of the latter are beyond question.”

[21]	Moreover, in criminal trials the onus rests on the State to prove the accused’s guilt beyond reasonable doubt.   If at the end of the trial the court is left in doubt about the guilt of the accused, the latter is entitled to the benefit of the doubt and to his discharge.   The rule is illustrated as follows in S v Van den Meyden 1991(1) SACR 447 (W) at 448f-g:
“The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt.   The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see for example, R v Difford 1937 AD 370 at 373 and 383).   These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives.   In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true.   The two are inseparable each being the logical corollary of the other.”

[22]	The conviction should be based on the evidence as a whole and should not be based on a portion of evidence tendered.   The following was said in S v Van den Meyden supra at 449h-450a:
“The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent.   The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it.   What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence.   Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.”

[23]	It is on basis of these principles that I have to determine which of the two versions, that of Salie or that of the second appellant, is to be accepted.   It is also on basis of the principles set out in paragraphs [19] to [22] of this judgment that I need to make a determination if, apart from the evidence of Salie, there is sufficient corroboration implicating the second appellant and thus, to sustain a conviction.   It is on basis of the evidence as a whole that I need to determine if Salie, in committing the robbery as he did, was executing a pre-arranged plan or whether he was on a frolic of his own.

[24]	Despite some contradictions in the evidence of Salie, which contradiction are, in my view, not material, his evidence is logical and consistent throughout.   His version of how he was co-opted in the scheme of the planned robbery; how the plan was explained to him; the involvement of Carelse; how she (Carelse) and her co-employee would be pounced upon on their way to the bank; the inspection of the scene and the location of the vehicle the employees would use to go to the bank, makes perfect reading of a plan based on inside information.   It is quite clear on basis of the evidence of Salie that the whole plan was foiled by a sudden and unexpected appearance of a police vehicle.
 
[25]	The second appellant confirms the evidence of Salie except those aspects relating to the commission of the offence.   He confirms that they travelled together to Super Plants, Bothasig except that, according to his version, the purpose was to accompany the first appellant to collect a computer from Carelse and money to buy food for home that evening; he confirms that they did not go to Super Plants when they reached Bothasig but proceeded to the parking area next to Shoprite shopping complex.   Whereas Salie states in his evidence that they utilised that opportunity to inspect the surroundings, the second appellant’s version is that they went to buy pies as they were hungry at the time.
 
[26]	Whereas Salie states in his evidence that he left the company after Carelse had called to indicate they were ready to leave for the bank, the second appellant wants to make believe that Salie simply jumped out of the vehicle, unannounced, and indicated he would return soon; whereas, they waited for about 20 to 30 minutes after Salie had left the car hoping that he would return soon, they did not utilise that time to go and collect the computer from Carelse, the main purpose of their visit to Bothasig.   They left Bothasig for Parklands without the computer and without the first appellant meeting Carelse as initially arranged.

[27]	There are several contradictions in the version of the second appellant.   In his evidence in chief, he states that whilst they were leaving for Parklands to pick up Fazlin Solomons, Salie simply jumped out of the vehicle, unannounced and indicated he would be returning shortly.   Under cross-examination this is what second appellant had to say about Salie’s disappearance in line 30 p265 and lines 1 to 3 at p266 of the record:
   “After you ate did you go to Super Plants? – No. we were waiting for Faizel. He walked to the car, then he said he’s coming now and then…
Then Faizel disappeared? --- Disappeared, yes.”
No mention is made of Salie jumping out of the car, as he had testified in his evidence in chief.

[28]	According to the version of the second appellant, after they had been to Parklands to collect Fazlin, and at the insistence of the first appellant, they returned to Bothasig in order to collect the computer.   According to his version it is only when they had been to Bothasig for the second time that they learnt of the robbery.   The first appellant denies this.  The first appellant insists in his evidence that after they had picked up Fazlin, they did not return to Bothasig.

[29]	There are numerous such discrepancies on record, ranging from the discrepancies between the evidence of the first appellant and the second appellant; the second appellant and Carelse, so that no further purpose will be served by enumerating these in this judgment.   Furthermore, apart from the evidence of Salie, who by all accounts is an accomplice, there is no other evidence which implicates the second appellant to the commission of the offence.   Although there is ample evidence on record which led to a successful conviction, based as it is on the evidence of Salie, and as it correctly submitted on behalf of the second appellant, there is no other independent corroborative evidence implicating the second appellant to the commission of the offence.

[30]	As is evident on basis of authorities referred to in paragraphs [19] to [22] of this judgment, the evidence of a person who participated in the commission of the offence is treated with caution for at least two primary reasons.   The first is that such a person may implicate the accused with the hope that he (the co-perpetrator) will be found not guilty or, if found guilty, his sentence will be reduced if he can effect the guilt of an innocent person; the second reason is that because of his particular knowledge of the crime concerned, he is capable of tailoring his evidence to suit his purpose or can easily phrase his lies in such a way that they acquire a semblance of truth. (See CWH Schmidt and H Rademeyer: Law of Evidence [Issue I] 4-13).

[31]	In the instance of this matter, at the time he tendered evidence, Salie had already been convicted and sentenced, so that any hope either of being indemnified or being found not guilty, had obviously fallen away.   As regards, the reason relating to particular knowledge of the crime in question, in my view this ought not to be a basis for distrust at all.   Salie had nothing to lose.   He had already been convicted and sentenced.  There is nothing he would have been hoping for.   As a matter of fact, his intimate knowledge of the prior planning and the commission of the crime itself, ought to add value to his evidence.   This approach would very much be in line with the observation by Van den Heever JA in R v Gumede 1949(3) SA 749(A) at 756 where the learned judge of appeal observed that because the accomplice had already been convicted and sentenced, he would be regarded with considerably less suspicion.

[32]	In the instance of Salie, except for some contradictions in his evidence arising from the statement he made to the police and the plea bargaining agreement, and which contradictions as I have already pointed out, are in my view not significant, I have no hesitation to conclude that his evidence was satisfactory in material respects.   In my view, the magistrate was correct in accepting his version of events leading to the commission of the crime and in rejecting the second appellant’s evidence as false.   The required corroboration is to be found in the fact that the version of the second appellant has sufficiently been shown to have been false.   In the falsity of the second appellant’s evidence, there lies the guarantee against the risk of convicting an innocent person.

AGGRAVATING CIRCUMSTANCES
[33]	The State alleges that the kind of robbery with which the first and second appellant were charged is the one involving aggravating circumstances in that a dangerous weapon, namely a steak knife, was used in the commission of the robbery.   In terms of section 1 of the Criminal Procedure Act, 51 of 1977 “aggravating circumstances” in relation to robbery, or attempted robbery means –
(a)	the wielding of a firearm or any other dangerous weapon;
(b)	the infliction of bodily harm; or
(c)	a threat to inflict grievous bodily harm by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence.
In casu, there was no infliction of bodily harm so that this leg of the requirement falls away.

[34]	The evidence relating to the existence or otherwise of aggravating circumstances is to be found in the evidence of the two state witnesses, in the persons of Neethling and Salie.   Neethling had this to say in lines 20 – 28 at p8 of the record:
“You said he had a knife up his sleeve. --- Yes.
Did he take it out of his sleeve? --- He didn’t take it out completely but you could see the blade and that it was, sort of, like a kitchen steak knife type of thing.
Did you see the handle of the knife? --- Not completely.
Part of it? --- Part of it.”

[35]	On the other hand this is what Salie has to say about the steak knife in his possession on the occasion of the commission of the robbery in lines 3 to 5 at p25 of the record:
“Daar was nog voertuie daar.   Ek het toe die steakmes het ek in my regtermou versteek gehad.”
Further in lines 25 to 30 at p25 of the record, Salie says the following:
En met daai het ek my regterhand ook ingebring in die voertuig in en oorgebuk en dis wat die steakmes uit my mou uit gly en ek het dit vasgegryp, toe haal ek die steakmes met my linkerhand uit my regterhand uit en toe die blanke vrou die mes sien, het sy die swart handsak gelos.”

[36]	There is evidence on other portions of the record in which reference is made to the steak knife which Salie had in his possession but it is not abundantly clear whether the weapon was used in circumstances involving a threat to inflict grievous bodily harm or whether the steak knife was wielded or not.   The test for determining the presence or otherwise of aggravating circumstances is a factual one.   The test is enunciated as follows by Holmes JA in S v Dhlamini and Another 1974(1) SA 90(A) at 94A:
“The requirement of grievous bodily harm, in the definition of aggravating circumstances, supra, goes beyond the offence of robbery, in which mere violence (or threat thereof) is sufficient.   Furthermore, in robbery the violence must precede and induce the taking.” 

[37]	Du Toit et al: Commentary on the Criminal Procedure Act, in their commentary under the heading “definitions”, observe that there is no onus in establishing the existence or otherwise of aggravating circumstances.  They go on to comment, at DEF2A [Service 32, 2004] that the State does not carry an onus to prove aggravating circumstances, nor the accused to show the absence thereof.   After a conviction, so the learned authors conclude, the court will examine the facts before it and will determine on the facts whether there was an occurrence which can be described as an aggravating circumstance.   I have grave reservations with this proposition particularly in the light of the guaranteed right of presumption of innocence contemplated in section 35(3) of The Constitution of the Republic of South Africa, 1996.   My view is that the onus is on the State throughout, including proof of presence or otherwise of aggravating circumstances.   

[38]	The presence or otherwise absence of aggravating circumstances impacts significantly on the quantum of sentence the court is likely to impose, particularly in the light of the provisions of the Criminal Law Amendment Act.   In the instance of the present matter, and based on both the evidence of Salie and Neethling, there is no clear indication if Salie wielded the knife he had in his possession or whether there was a threat to inflict grievous bodily harm.   Salie’s evidence is not clear in this regard.   As correctly submitted by Mr Caiger, for the first appellant, the State proposed to use Salie as its star witness so that the State must rise and fall on the evidence tendered by Salie in regard to whether there were aggravating circumstances present or not.   Based on the evidence and the facts in the present matter, I am unable to conclude that the State has proved beyond reasonable doubt that aggravating circumstances were present on the occasion of the commission of the robbery in question.  Consequently the first and the second appellant, together with Carelse, accused number three, ought to have been convicted of robbery simpliciter.

SENTENCE
[39]	It is submitted on behalf of the first appellant that if we do hold that no aggravating circumstances were present when the offence was committed or, alternatively, that the State failed to prove aggravating circumstances, then, in that event, the sentence of eight (8) years imprisonment imposed on each of the appellants is exceedingly severe and, as such, induces a sense of shock.   Similar submissions are made on behalf of the second appellant.   It is accordingly submitted on behalf of each appellant that there is justification to interfere with the quantum of the sentence imposed by the magistrate in the likely event of us holding that both the appellants and accused number three ought simply to have been convicted of robbery.

[40]	The sentence of eight (8) years imprisonment imposed on each appellant and accused number three was obviously considered appropriate by the magistrate in the light of a finding that aggravating circumstances are present.   In paragraph [37] of this judgment I conclude that aggravating circumstances were not proved, hence I held that the appellants ought simply to have been convicted of robbery.   In the light of my conclusion in regard to the presence or otherwise of aggravating circumstances, and despite the gravity of the offence of which the appellants were convicted, I am of the view that a sentence of eight (8) years imprisonment is severe and disproportionate in the circumstances of this matter.   I hold this view particularly in the light of the appellants’ personal circumstances and without in any way over emphasizing these over the gravity of the offence.   The appellants’ personal circumstances are in the record of the proceedings of the court a quo and there is no need to repeat these in this judgment.

[41]	The magistrate was correct in my view to have found that there were substantial and compelling circumstances present and, on basis of such a finding, to deviate from imposing a minimum sentence prescribed in terms of the Criminal Law Amendment Act, 105 of 1997.   I cannot fault her finding in this regard.

[42]	In the result, the following order is made:
[42.1]	   The conviction of the appellants of the crime of robbery with aggravating circumstances is hereby set aside and is substituted with a conviction of robbery;
[42.2]	   The sentence of eight (8) years imprisonment imposed on each of the appellants is hereby set aside and is substituted with one of four (4) years imprisonment;
[42.3]	   The conviction of Ingrid Carelse, accused number 3 in the court below, on robbery with aggravating circumstances is similarly set aside and is substituted with one of robbery;
[42.4]	   Similarly the sentence of eight (8) years imprisonment imposed on Ingrid Carelse is set aside and is substituted with one of four (4) years imprisonment;
[42.5]	   The sentences are ante-dated to 18 April 2005.

I agree.  

____________________
A ABERCROMBIE, AJ

It is so ordered.

____________________
N J YEKISO, J