S v Sithole and Another (53/2006) [2007] ZAGPHC 329 (28 November 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CRIMINAL APPEAL CASE No.: 53/2006

DATE HEARD: 12 NOVEMBER 2007

DATE OF JUDGMENT: 28 NOVEMBER 2007

FOR APPELLANT: ADV J HENZEN

FOR RESPONDENT:

UNREPORTABLE

In the Criminal appeal of:

SITHOLE, NTOKOZO INNOCENT 1ST

APPELLANT

KHAMBUZA, MTHOKOZIBI 2ND

APPELLANT

and­

THE

STATE RESPONDENT

JUDGMENT

VISSER, AJ:

1. The first appellant as accused 1 and the second appellant 2 as accused 2, were charged in the Regional Magistrates Court at Benoni together with a third accused, who is not an appellant in this appeal. I shall refer to the appellants as they were referred to in the court a quo.

2. There were 5 charges levelled at the three accused: 1) Robbery with aggravating circumstances of a .38 Special revolver from one Elijah Makufane: 2) Robbery with aggravating circumstances of a 9mm pistol, a wallet containing approximately R1 ,800.00 cash, a neck chain and a wrist watch from certain Mr Erasmus; 3) Robbery with aggravating circumstances of R 4,000.00 cash, a Nokia 3410 cellphone a Samsung cellphone and 12 cellphone cards from one Mr Abid Jamadar and/or Mr Ahmed Mohammed and/or Mr Hawa Iqbal; 4) The unlawful possession of three firearms; and 5) the unlawful possession of ammunition.

3. In each of the robbery charges it was alleged that firearms were used to execute the robbery. Count 4 referred to three firearms which included the .38 Special revolver which was taken from Mr Makofane in count 1 and the 9 mm pistol which was taken from Mr Erasmus in count 2.

4. All three the accused were legally represented. They all pleaded not guilty to all the counts. In spite of the pleas of not guilty of accused 1 and 2, accused 1 was convicted on counts 1 to 5, as charged. Accused 2 was convicted on count 2 of robbery with aggravating circumstances and was acquitted on the remaining counts. Accused 3 was discharged at the end of the State's case.

5. Accused 1 was sentenced on count 1 (robbery with aggravating circumstances) to 10 years' imprisonment; on count 2 (robbery with aggravating circumstances) to 15 years' imprisonment; on count 3: (robbery with aggravating circumstances) to 15 years' imprisonment; and in respect of counts 4 and 5 (the unlawful possession of three firearms and the unlawful possession of ammunition) the sentences (which were not specified) were ordered to run concurrently with the sentence on count 1. The magistrate ordered 5 years of the sentence imposed on count 3 to be served concurrently with the sentence of 15 years' imprisonment on count 2. Although the Magistrate apparently thought that he was sentencing accused 1 to an effective term of 30 years' imprisonment, he in fact sentenced him to an effective total of 35 years' imprisonment.

6. Accused 2 was sentenced in respect of count 2 (robbery with aggravating circumstances) to 15 years' imprisonment.

7. Accused 1 and accused 2 now appeal with leave having been granted to this Court against both their convictions as well as their sentences.

8. Evidence was presented at the trial by the State. In respect of count 1, the complainant, Mr Makofane testified that on 30 October 2004, he was on his way home from work when he was approached from the front by three black gentleman. One of them grabbed him as he walked past them, one pointed a firearm at him and the third searched him and found his .38 revolver on his body in a shoulder holster. They took the revolver and left. He went to the police station to report the matter. At the time of the incident it was dark and there were no street lights burning. He could not to see the robbers' faces, and could not identify any of them. His revolver was later recovered by the police and returned to him.

9. In respect of count 2, three witnesses testified. Mr Erasmus testified that on the morning of 6 November 2004, he was in a Suzuki motor cycle shop together with his wife, Moira, and their daughter, Michelle. He was showing his wife a motorcycle which he intended to purchase. He sat astride the motorcycle in order to "show" himself "off' to his wife and daughter when he realised that the pistol which he had tucked into the front of his trousers might scratch the petrol tank of the motorcycle. He removed the pistol in order to hand it to his wife but in the process a clip holding the magazine in place, broke and the magazine fell out, spilling the bullets on the floor. He got off the motorcycle to gather the bullets from the floor. He became aware of the presence of three people in the vicinity where they were. He handed his pistol to his wife together with the magazine. He then realised that a firearm was being pointed at them. He testified that it was accused 1 who was doing the pointing. Mr Erasmus was immediately under the impression that the people who had arrived might be under the impression that he wanted to rob the shop and he consequently told them that he wasn't there to rob. He then realised, however, that these three people were in fact there to rob.

10. Accused 1 ordered Mrs Erasmus to hand over the pistol to him. Apparently she hesitated and a shot was fired by accused 1, which passed between her legs and stuck the floor. She thereupon threw her husband's pistol in the direction of accused 1. Mr Erasmus stated that he did not think that the shot was intentionally fired because accused 1 looked surprised when the shot went off. On his testimony one gains the impression that the pistol was neither consciously nor intentionally aimed at Mrs Erasmus when the shot was fired.

11. The Erasmus family was then instructed to move to an office. This instruction was given by accused 2 according to Mr Erasmus. In the process, while they were moving towards the office, the daughter of Mr Erasmus came running to him and she was grabbed by accused 1 in a rough handed fashion, an act which Mr Erasmus took umbrage to. He addressed accused 1 in quite an aggressive way, telling him that if he again pushed his daughter he would "take him". He also told accused 1 to hand back his pistol to him. This prompted Mrs Erasmus to warn Mr Erasmus not to be aggressive because he might be shot.

12. In the office where they were taken, they were told to lie on the floor by accused 2. Three other people were also brought into the office. These people were not called as witnesses by the State. Mr Erasmus described the weapons in the possession of accused 1 and accused 2 as "pistols". He said that the pistol in the possession of accused 1 was black, but he was unable to recall the colour of the pistol in possession of accused 2. Accused 1 was concerned that Mr Erasmus might activate a security panic button. He ordered Mr Erasmus to keep his hands in full view. At the time, Mr Erasmus was crouching on the floor. He was instructed by accused 1 to take off his neck chain and his watch and to take out his wallet and give it to him, which he did and accused 1 took these items. Mr Erasmus testified that during this time, as well as the time when accused 1 manhandled his daughter and the subsequent confrontation by him of accused 1, he was very close to him and was able to register a proper mental impression of his facial features.

13. Mr Erasmus gave the serial number of the pistol which was taken during the robbery from him. This firearm was also recovered by the police, and handed back to him. The magazine which broke on the day of the robbery as explained above, had been modified to prevent the magazine from falling out of the weapon.

14. The time when the robbery took place was around 09h00. Inside the shop there were lights switched on and the shop had big display windows letting in the daylight from outside. Mr Erasmus made it clear that he was unable to remember all aspects of the robbery. He stated that he thought that while they were in the office, accused 2 stood at the door, but of that he was not certain. He also stated that the third robber had gone up the stairs, but that he could not say that it was accused 3.

15. In court he described the face of accused 1 as having small scars on the one side and one large scar on the other. There was also a cut mark over his nose. During cross-examination it was not disputed that there was such a cut mark, but it was put to him that the cut was in fact over his cheek. This description was later further adapted to a cut which runs over the nose and cheekbone. It was not disputed that accused 1 had such scars on his face as were described by Mr Erasmus. He also stated that accused 1 was bald. Mr Erasmus described the build of accused 1 interchangeably as "slender" and "small". It was a black man he said. He could not remember anything peculiar about the voice or the accent of accused 1, although he testified that accused 1 talked a lot. He later attended an identification parade where he pointed out accused 1 as one of the robbers. Mr Erasmus testified that although he saw accused 2 at the identification parade, he did not point him out, because he was not certain of him.

16. He was cross-examined by all three the legal representatives on behalf of the accused in respect of his identification. During cross­ examination on behalf of accused 1 Mr Erasmus testified that he took umbrage to the way in which accused 1 had treated his daughter and that at that time he faced up to him and told him to put down his gun. He said that he swore at accused 1, saying that if he did not put down his gun he would "take" him. He said that during this argument he was looking straight into the eyes of accused 1 and he imprinted the facial features of the accused on his mind. When it was put to Mr Erasmus that he had pointed out accused 1 because of the scars on his face and that accused 1 was the only person on parade who had such scars on his face, Mr Erasmus seemed to remember that there was another person who also had scars on his face. The uncontested evidence of the fact of the scars on the face of accused 1 seems to me to corroborate and support his identification and to render it acceptable and reliable evidence.

17. It was put on behalf of accused 1 that he was never in that shop. This was rejected by Mr Erasmus. Mr Erasmus also dispelled any suggestion that he was told by anyone whom to identify at the identification parade. During his cross-examination it appeared that the Erasmus family spoke about the robbery afterwards. Mr Erasmus stated quite honestly that they spoke about the robber with the scars on his face and he conceded that this might have influenced his daughter, Michelle Erasmus.

18. Mr Erasmus testified that they had expected that at the identification parade they would be standing behind a one way reflective glass panel, which, they discovered when they arrived, was not the position. Mrs Erasmus was not willing to participate in the parade, as she was traumatised at the thought of having to face up to the robbers again. It seems to me that this is an aspect which should be borne in mind when dealing with the identification by Mrs Erasmus during the later identification parade.

19. Mr Erasmus was later recalled during the trial during which he produced his identity document, showing that he was the registered owner of a firearm with serial number PBL877, which was the 9mm pistol which robbed on the day, and which was later recovered by the police from the possession of accused 1.

20. Mrs Erasmus confirmed that she was present on the morning of the robbery at the Suzuki motorcycle shop at around 09h00 with her daughter and her husband. She confirmed the evidence of Mr Erasmus in all material respects as to what had occurred during the robbery. In particular she testified that accused 1 shouted at her for the gun of Mr Erasmus. She threw the pistol in his direction and, according to her, directly thereafter accused 1 fired a shot which traveled between her legs onto the floor. She also confirmed that her husband was aggressive to accused 1 and that she warned him that he should stop being aggressive as he might be shot. She testified that in the office the two robbers who were present were accused 1 and accused 2. She did not know where the third person was. She was unable to identify the third robber.

21. She testified that she observed accused 1 taking the neck chain and the wallet from her husband, after the items were demanded from him. She said that accused 2 was the person who was frisking the other people in the office. After that had transpired, the robbers left and locked the door. After they had left, Mr Erasmus ran out of the office in pursuit of the robbers.

22. She testified that she attended an identification parade. The prosecutor did not lead this evidence with sufficient clarity to enable one to establish whom she identified at the parade. She did testify, however, that she did identify one person with scars on his face and with no hair on his head. She confirmed that her husband had received back his pistol which had been taken during the robbery.

23 During cross-examination on behalf of accused 1, she testified that she remembered accused 1 well as he was the person who fired the shot which passed between her legs and that he was the one who robbed her husband of his possessions. She rejected the suggestion that accused 1 was not present on the day in question. She also identified accused 1 in court by the scars on his face. During the cross­ examination it was put to Mrs Erasmus that she had not identified or pointed out accused 1 at the identification parade, according to the notes made on the identification parade form. It was put to her that she had in fact pointed out two persons, none of whom was accused 1. She stated that the only reason why she did not point out accused 1 at the identification parade was because she did not see him there.

24 In cross-examination on behalf of accused 2, Mrs Erasmus testified in respect of accused 1, that he was the "smallest" ("kleinste") of the robbers. He was the person who had the firearm from which a shot was fired which passed between her legs. Her attention was focused upon him. It was put to her that in spite of all of this, she failed to point out accused 1 at the identification parade. She then stated, in conflict with her previous evidence, that she did remember seeing him on the parade. When she was asked to describe any identifiable features of the face of accused 2, she stated that he "looked so innocent", and that he was speaking in a loud voice. He had a peculiar way of standing and looking at one, she said. She added that she can remember a scratch on his face. He had a beard but not a full beard. She then stated that he was tall and that he was in fact taller than the other two robbers. When asked to describe his build, she stated, she stated that he was "klein". She gave fairly confused evidence in respect of what she recalled accused 2 had done while they were in the office.

25. Michelle Erasmus testified that she was present in the motorcycle shop when the robbery took place. She confirmed that her father sat on a motorbike, and that he was afraid that his pistol might scratch the motorbike. This piece of evidence makes it quite clear that the family discussed the events of the day in some detail. She said that her father gave his pistol to her mother and then the bullets with the magazine fell out. Her father picked up the bullets from the floor. Three people arrived. She could not say exactly what all three of them looked like, but she recalled that the one had scars on his face and the "other one" was with her father.

26. She testified that the heads of all the robbers were clean shaven. Then she stated that she could not remember how many of them were bald. She testified that the one with the scars on his face was near her mother. He was the one who fired a shot which passed between her mother's legs which struck the ground. He was the one who pushed her and her mother. At the time her father was with "the other person". She testified that they were taken to a small room and that her father's jewellery was taken. Her father asked for his firearm to be returned which was denied. She was asked about the identification parade, and she stated that she could not remember how many people she pointed out.

27. In cross-examination on behalf of accused 1 she stated that accused 1 was shorter than the other two. She identified him by scars which he had on "the one side of his face". She said that she only looked at the one side of his face.

28. This concluded the oral evidence in respect of count 2.

29. Four witnesses testified in respect of the robbery in count 3. The first was Mr Jamadar, who testified that he owned a plumbing and building supply shop in Benoni. I shall refer to this business as the"Building Supply Shop". On 25 November 2004 at about 09hOO in the morning, he was in the office of the shop. The shop was already open to the public. He wasn't aware of what had occurred that morning but was only informed later by his staff of events which took place. He testified that R4,000.00 cash was taken from a cash register in the shop. In addition, cordless telephones and cell phones were taken. One of the cell phones belonged to one of his customers and one to one of his staff members. The two cordless telephones belonged to the shop. He received one of the cell phones back from the police. This was sometime after the robbery. It was the cell phone which belonged to the customer. The customer had brought the original box in which the cellphone was purchased which contained the serial numbers of the cellphone. This allowed for the cellphone to be positively identified after it was recovered. According to him, nobody was injured in the robbery.

30. Mr Ahmed Mohammed testified that he was an employee at the Building Supply Shop. On 25 November 2004 at around 09hOO he was at work, standing behind the counter. Four men walked into the shop. He did not know them. He enquired whether he could assist them. One of them pointed a firearm at him and came behind the counter. He asked where the money was kept. Mr Mohammed described this person as having worn a blue overall, being of a "small" build, that he was "short" and that he had "marks on his face". This robber helped himself to what was in the cash register. Thereafter he told the witness to lie on the ground. Thereafter they left.

31. Mr Iqbal testified that he also worked at the shop. On the day and time in question, four people came into the shop. One first went to Mohammed and later came to him. He had a gun which he was pointing around. He pointed this person out in court as being accused 1. He stated that he SqW that accused 1 had "scratches" on his face on "both sides". The fact that he was the one who pointed a gun at the witness, is what made him remember the face of accused 1. The robbers also went behind the counter where he was and took money.

32. Mr Abdul Sonagur was the last witness to testify in respect of count 3. He testified that he worked as a security officer at the Building Supply Shop. On 25 November 2004 at 09h00 he was standing outside the shop when he saw two black male persons entering the shop. He did not see whether they had anything in their possession. When these two black males came out of the shop they were running. He followed them. Their car had been parked about 50 metres from the shop. It was a white Toyota Cressida. The witness followed them when they drove away in his bakkie. While following the Cressida, he noticed that it had no registration plate. The car was driven in the direction of Wattville. He did not follow the car into the township, but telephoned the police. Later the police arrived and he took them to the area where the car had gone. He drove around looking for a white Cressida with the police. They found the car park near a shop. They stopped at the car and discovered that the engine was hot. They telephoned for assistance and more police arrived. The police then told the witness to leave, which he did.

33. Inspector Nguni testified that he was an Inspector in the South African Police Service, stationed at North Rand Police Station. On the morning of 25 November 2004 he was on duty. The police received a look-out alert on the radio for a Cressida vehicle. There were a lot of cars looking for the vehicle. He was informed that the motor vehicle was involved in a robbery of a shop in Benoni. His group of policeman found the motor vehicle. They made inquiries from the owner of a nearby shop where the was parked and they were pointed to a certain shack. They went to the shack where they knocked on the door and a lady opened. The shack was a one roomed structure. Three black gentleman were inside the shack. The lady was evidently the owner of the shack. The three black men, who were the three accused, were sitting in the shack. According to the witness, the three men looked surprised and frightened when the police entered. The lady said that the three men had only come to visit her. The inspector testified that with the permission of the lady, they searched the shack and found some dagga. The lady was arrested for the illegal possession of dagga.

34. The police inquired from the three men where they stayed. Accused 1 indicated that he stayed in a shack a little distance away. The other two indicated that they had recently moved to a hostel and that they were unable to point out which rooms they occupied in the hostel. The police apparently believed their story. The police then went to the shack of accused 1. Accused 1 unlocked the door of the shack and upon searching the shack three firearms and one cellphone were found. All the firearms were loaded with ammunition. These items were confiscated and later entered into the SAP 13 register.

35. According to the register under OB number 433 the following was entered: 1) .38 Special revolver - serial AA4205 (indistinct); 2) one CZ75 9mm pistol of which the serial number had been filed off; and 3) one Vektor 9 millimetre pistol, serial number: BBL877. The .38 Special revolver was the subject of count 1 and the Vektor pistol was the one taken from Mr Erasmus in count 2.

36. Inspector Nguni testified that he formed the opinion that the goods were stolen goods. He requested accused 1 to explain why the items were in his room. Accused 1 told the inspector that it belonged to friends of his. He did not identify who the friends were, however. All three the accused were arrested.

37. Inspector Selby Mofokeng testified that he was an inspector in the South African police and had 14 years experience. He said that on the morning of 25 November 2004, he accompanied Inspector Nguni and was involved in the arrest of the three accused before Court. They had received information from an informer, who told them of people who were planning to stage a robbery on that day. The information was that these people were staying at a hostel. He arranged for backup so that they could wait for these people at the gate of the hostel. However it appeared that the persons had already left by the time the police arrived at the gate. The police left the hostel and patrolled the area around Actonville and Benoni. They later received radio information of a robbery in Lever Road. This was about 10h00 in the morning.

38. They went to the Building Supply Shop where they were given information. They drove off in the direction in which they were advised to go. They found a white Toyota Cressida parked near a Spaza shop. The registration number of the Cressida was, according to the inspector, either DSY or DSF 036. He wrote it down in his statement in the case, and it appeared to be DSY360GP. They made inquiries. They were directed to a shack next to the shop. They went to the shack where they found the female and the three accused inside the shack. They searched the shack and found some marijuana. They asked the three accused to show the police where they lived. Initially the accused did not want to tell the police where they stayed. The shop owner, however, knew where they lived and had already informed the police where that was. When the police told the accused that, they were taken by accused 1 to where he lived.

39. The shack of accused 1 was searched by the police. They found a cellphone and three firearms. The inspector testified that they did not go to search for the rooms of accused 2 and accused 3, because they had found all the items that they were looking for at the premises of accused 1. They did not find any money however. They asked accused 1 where the telephone came from. He denied any knowledge of the cellphone.

40. The witness was present when the items were booked into the SAP 13. The firearms were written in under number 433, and the cellphone under number 701 of 2004. The cellphone was a Nokia.

41. Inspector Mofokeng contradicted the evidence of Inspector Inguni, by saying that when they arrived at the shack of accused 1 they found it to be open, whereas Nguni had stated that accused 1 unlocked the door of the shack. He testified that they asked accused 1 for an explanation of his possession of the firearms, and that he replied that he knew nothing about them. This is also in conflict with the evidence of Inspector Nguni who stated that accused 1 said that the firearms belonged to friends of his.

42. Upon questioning on behalf of accused 2, the witness asserted that they asked accused 1 as well as his neighbours, and were told that accused 1 was the only person who lived in that shack. There was also only one bed in the shack.

43. The State handed ballistic reports in by the consent, indicating that all three firearms were in working condition. The State also handed in a computer printout of the firearms register in respect of the firearm of Mr Erasmus.

44. There was evidence about identification parades which were held and the documentation and photographs relating to the identification parades were handed in as exhibits in the trial. A lot was left to be desired by the way in which the identification parades were conducted. Counsel for the State, advocate Bezuidenhout, made reference to this aspect. However, I find it unnecessary to deal with the shortcomings of the identification parade inasmuch as the legality of the identification by the witnesses was not affected. The following information appears from the record of the identification parades:

1. On an identification parade held on the 14 December 2004, the three accused were present. According to the identification parade documentation, there were 14 persons on the parade ­the three accused and eleven other persons.

2. In respect of count 2, the robbery at the Suzuki shop, Mr Erasmus pointed out accused 1 and while doing so, stated that he was "100% certain" of him, but was uncertain as to the other suspects. He testified in court that he was not certain of accused 2.

3. It was noted that Mrs Moira Erasmus refused to attend the parade of 14 December 2002 because she did not want to confront the robbers face-to-face. At a later identification parade, held on 10 January 2005, there were 10 persons on parade. The three accused were among those 10 individuals. Mrs Moira Erasmus pointed out accused 2 in respect of the robbery at the Suzuki shop, count 2. She failed to point out accused 1 in spite of the scars on his face.

4. On the same parade it is recorded that Michelle Erasmus pointed out accused 1 in respect of count 2.

5. Also at the identification parade held on 10 January 2005, Mr Mohammed pointed out accused 1 as one of the robbers of the Building Supply Shop, count 3, as did the witness Iqbal.

45. At the conclusion of the State's case application was made for the discharge of accused 3, which was granted. The case then proceeded against accused 1 and accused 2 only.

46. Accused 1 elected to testify in his own defence. His evidence was a complete denial of any participation by him in any of the charges. He was unable to explain why the witnesses had implicated him. He protested that he knew nothing about a cellphone or three firearms being found in his shack. He stated that the police gained access to his shack during his absence by kicking in the door which had been locked. This was never put to the police witnesses. He said that he was not even present when his shack was searched, as he was left in the motor vehicle. This had also not been put to the police witnesses.

47. In cross-examination he was asked questions about the scars on his face which were put to him to be quite prominent. He agreed with this statement. He was asked to confirm that the scars were on both sides of his face, which he also confirmed. The prosecutor pointed out that he had at least three scars on each side of his face. This accused 1 also agreed with.

48. It was put to him that four witnesses had pointed him out at the identification parade. Accused 1 conceded that but sought to explain it by saying that the police had confiscated his identity document, which they kept for approximately 21 days. He did not know what the reason was why it was confiscated. This evidence was presented to imply that his photograph in his identity document was shown to the witnesses in order to assist them in identifying him at the identification parade. He never saw any firearms in his shack. He said firearms were shown to him by the police outside his shack. He suggested that the firearms were planted in his shack by somebody. He insisted that he was being falsely implicated because he had no knowledge of any of the offences.

49. Accused 2 similarly gave evidence in his own defence. He confirmed that he was arrested together with accused 1 and accused 3. He explained that he moved to the area from Warmbaths a little while before. He denied any complicity in any offence. He never had a firearm. He explained that he was in the shack of the lady to which I have referred, because they are related. He went there on a visit.

50. In cross-examination by the prosecutor he was asked why he did not have scars on his face, seeing that he was also a Zulu, the same as accused 1. His response to that question was significant. He said that if one looked closer one would see that his face did have scars. He testified that not all persons' scars were the same. This evidence appears to me to be of significance in relation to the evidence of Mrs Moira Erasmus and Mr Erasmus, who both stated that there were more than one person on the identification parade with scars on their faces.

51. Accused 2 said that the witnesses were mistaken by having identified him as one of the robbers at the Suzuki shop.

52. In his judgment, the magistrate considered it to be important that both the accused were identified as having been the robbers in the Suzuki shop, taken together with the fact that they were arrested together. I agree with the magistrate that this factor cannot be considered to be a mere coincidence. The following facts and circumstances may be added to this view of the magistrate:

1. From the evidence on record it is quite clear that the scars on the face of accused 1 presented highly identifiable characteristics of his facial features. So much is this so, that it appears to me from the record that one can hardly make a mistake with his identification.

2. At the Suzuki shop accused 1 was positively identified. At the identification parade both Mr Erasmus and Michelle Erasmus pointed out accused 1 as one of the robbers at the Suzuki shop. Mr Erasmus testified in court that the accused 2 was also present during the robbery, but he failed to point out at the identification parade.

3. Mrs Erasmus pointed out accused 2 at the identification parade. Her evidence, describing the physical attributes of accused 2, was striking. She testified that there was a particular or peculiar way in which he stood, and in which he looked at one, as if he "looked down on you". It is a pity that care was not taken by the magistrate to enter into the record what he observed in respect of these characteristics of accused 2. However, the magistrate having been in the position to observe accused 2 in court, and to compare the evidence of Mrs Erasmus with what he observed of accused 2, was satisfied that Mrs Erasmus' evidence was to be accepted. No criticism was leveled at this description of Mrs Erasmus in cross-examination of her by the legal representatives. From the record it does not appear that the magistrate misdirected himself in accepting the identification by Mrs Erasmus as positive and reliable. I have referred to the other features of identification of accused 2 in the evidence of Mrs Erasmus. I believe that there can be no criticism of the Magistrate's finding that accused 2 was one of the robbers in the robbery at the Suzuki shop.

4. Four witnesses, Mr Erasmus, Michelle Erasmus, Mr Mohammed and Mr Iqbal all described one of the robbers as a man with scars on his face. They all, at different identification parades, identified accused 1 as being that person. As the Magistrate had pointed out, the identification by Mrs Moira Erasmus of accused 2 as one of the persons who was in the company of the robber with the scars in the Suzuki shop, was corroborated by the fact that accused 2 was arrested while in the company of accused 1.

53. The magistrate considered that the circumstance of the argument between Mr Erasmus and accused 1 was inducive to a proper and reliable identification. I agree with the magistrate. I would add that the fact that it was accused 1 who fired a shot in the vicinity of Mrs Erasmus would have had a similar effect.

54. Advocate Bezuidenhout, who appeared for the State, submitted that accused 1 was correctly convicted on counts 2 to 5 and that accused 2 was correctly convicted on count 2. Counsel, in my view, correctly pointed out, with reliance on S v Nsele 1998 (2) SACR 278 (A), that the protestation by accused 1 that the firearms were not found in his possession, was correctly rejected by the Magistrate.

55. It must be emphasised that our law applies certain cautionary rules in respect of the evidence of single witnesses and identification witnesses. The cautionary rule applies especially in the case of a single witness who is also an identification witness. This is by virtue of the fallibility of human observations (R v T 1958 (2) SA 676 (A) at 678A-F). The court must be satisfied that the witness making the identification is not only honest, but also reliable (S v Mthetwa 1972 (3) SA 766 (A) at 768A-B). Honesty by itself is no guarantee of reliability (R v Masemang 1950 (2) SA 488 (A) at 493). Consequently, a witness's honesty and own conviction as to the correctness of his or her identification cannot be allowed to take the place of an independent enquiry into the reliability of the identification itself. (S v Mlati [1984] ZASCA 88; 1984 (4) SA 629 (A) at 632H-I.) There are indeed a multitude of factors which can affect the ability of a witness to make a correct identification. These must all be borne in mind whenever the reliability of an identification is judged. Various of these factors are referred to in S v Mthetwa above at 768A-C. The probability that an identification is reliable is strengthened when the person who has been identified was known beforehand to the identifying witness (R v Oladla 1962 (1) SA 307 (A) at 31 OC). The same applies in cases where there is

something about the accused which is objectively patent for all to see, such as the scars on the face of accused 1 in the present case, which minimises the risk of a wrong identification. Our law prescribes that close attention must be paid to the opportunity which the witness had of identifying the person in question in the circumstances then prevailing in order to ascertain whether a correct and reliable identification was made. (R v Oladla above at 310E.)

56. The identification of accused 1 at the identification parade by no less than two witnesses each in respect of counts 2 and 3, is a factor which weighs heavily against an assumption of an incorrect identification. As far as accused 1 is concerned, the significantly pronounced scars on both sides of his face and nose support the inference that an identification of him could be made without much room for error. Apart from that, the evidence of the finding of the firearms and the cellphone in the shack of accused 1, which items were taken during the robberies referred to, is an important factor in considering whether a correct identification of him was made by the witnesses. It is also a relevant consideration that accused 1 presented no acceptable explanation for his possession of the firearms and the cellphone.

57. I have pointed out various conflicts in the evidence of the State witnesses. In view of all the evidence, however, I conclude that such conflicts and/or discrepancies as may be present in that evidence, is insufficient to cast a reasonable doubt upon the reliability and accuracy of the identification of accused 1 and accused 2 by the relevant witnesses.

* COUNT 1:

58. In spite of the period which had elapsed since the taking of the .38 Special revolver in count 1, the magistrate held that the evidence was such that the inference, as an only necessary inference, can be drawn that accused 1 was a participant in the robbery of that firearm. I find myself in respectful disagreement with this view of the magistrate. Advocate Henzen, who appeared for both the accused in their appeals, criticised the findings of the Magistrate. Counsel argued in respect of count 1 that the complainant was a single witness. The complainant had identified his firearm at the police station. He was robbed of the firearm by three armed men. He could not identify any of the perpetrators. Counsel stated that the conviction of accused 1 was based solely on the possession of the firearm which was found one month later in his shack. Advocate Henzen argued in respect of count 1 that no inference of guilt of robbery was justified by the mere fact that accused 1 was found in possession of the possession of the .38 Special revolver by was warranted. She argued that, at most, it warranted a conviction of stolen property.

59. In respect of the "doctrine" of recent possession, reference may be had to S v Skweyiya [1984] ZASCA 96; 1984 (4) SA 712 (A) where it was held that it is important when applying the so-called doctrine of recent possession, to consider the nature of the goods involved. In that case it was held that, where the accused had been found in possession of a portion of the goods which had been burgled 15 days earlier, the conclusion was not justified that it was the accused who had broken into the premises and stolen the goods where such goods were of the type which usually could easily and rapidly be disposed of. A conviction of housebreaking with intent to steal and theft was altered to one of receiving stolen property knowing such to have been stolen. In S v Parrow 1973 (1) SA 603 (A) it was held that on proof of possession by the accused of recently stolen property, the court may (not must) convict him of theft in the absence of an innocent explanation which might reasonably be true, Le. the Court should think its way through the totality of the facts of each particular case, and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property. In R v Morgan 1961 (2) SA 377 (T), where the accused was found using a bicycle openly and apparently in an unaltered condition, it was held that his possession thereof two years after the theft could not be regarded as a sufficient ground for any real suspicion that it was stolen by him, notwithstanding the fact that the explanation given by him is untruthful. See also S v Jantjies 1999 (1-} SACR 32 (C).

60. It is clear that each case depends upon its own facts and circumstances. The test remains whether the inference can safely be the drawn as the only reasonable inference that the person in whose position the item is found, was indeed the person who committed the offence.

61. An unlicenced firearm is an item which is likely to change hands easily and often in South African society. The period which had elapsed since the incident depicted in count 1 and the finding of the firearm in the shack of accused 1, is such that a reasonable doubt must be entertained whether it was the same person who took the firearm who was also found in possession thereof. In the circumstances of the present case it appears to me that the robbery of the .38 Special revolver was simply too far removed from the finding of the firearm in possession of accused 1 to draw the inference as the only reasonably possible inference, that accused 1 was a participant in the robbery of the firearm. As a consequence of this, it is my view that accused 1 was entitled to the benefit of the doubt which there exists and that he is entitled to his appeal being upheld in respect of count 1.

62. The question would then be whether accused 1 could be found guilty of any other offence as an alternative to the robbery count in count 1. It is clear that the opinion of Inspector Nguni that the items which were found in the shack belonging to accused 1, were stolen items, was a reasonable suspicion. It appears to me that sufficient evidence was presented in the evidence of Inspector Nguni to support a conviction of the contravention of the provisions of section 36 of the General Law Amendment Act, 62 of 1955. In this regard it is important to note the provisions of section 264 (1) of the Criminal Procedure Act, 51 of 1977, which provides:

“If the evidence-on a charge of theft does not prove the offence of theft, but

(a) the offence of receiving stolen property knowing it to have been stolen;

(b) an offence under section 36 or 37 of the General Law Amendment Act, 1955 (Act 62 of 1955); or

(c) an offence under section 1 of the General Law Amendment Act, 1956 (Act 50 of 1956);

(d) …

the accused may be found guilty of the offence so proved.”

63. Sec 36 of the General Law Amendment Act, 62 of 1955, provides:

“Any person who is found in possession of any goods, other than stock or produce as defined in s 1 of the Stock Theft Act 57 of 1959, in regard to which there is a reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.”

64. It appears to me to be axiomatic that, the moment theft has been proved section 36 can no longer find application. Consequently, on that basis, accused 1 should in my view be acquitted on count 1.

65. A further consideration is that, although the accused was legally represented, he was not warned, nor did the magistrate make certain at the inception of the trial that the accused understood that he could legally be convicted of the alternative charge of contravention of the said section. Even though accused 1 was legally represented, I regard it as important that the intentions of the Magistrate should be declared at least to the legal representative. No such warning was given to accused 1 or his legal representative by the Magistrate of the implication that he might be convicted of that contravention as an alternative to robbery. What complicates matters in the present case is that the magistrate had found that not theft, but robbery, had been proved. It appears that such a finding would take the matter out of the ambit of section 264(1) of the Criminal Procedure Act. In the circumstances, and for this reason also, it is my view that accused 1 is entitled to an acquittal on count 1.

* COUNT 2:

66. In respect of count 2 the magistrate pointed out that the only evidence which linked accused 2 to the crime was that of Mrs Moira Erasmus. In fairness, it must be stated that although Mr Erasmus did not identify him at the identification parade, he did testify that accused 2 was in the shop, and gave evidence as to what his role was in the robbery. The magistrate warned himself of the dangers inherent in evidence concerning identification to which I have referred above. The magistrate concluded that Mrs Erasmus had sufficient opportunity to observe accused 2 and to properly identify him. He considered that her identification was corroborated by the fact that accused 2 was found in the company of accused 1 who had been positively identified as a robber in the Suzuki shop. As would appear from what follows, I am of the view that there was other evidence and circumstantial evidence which also linked accused 2 to count 2. In my view accused 2 was correctly convicted on count 2.

67. It was submitted by advocate Henzen that the Magistrate erred in finding that the identity of the robbers in count 2 had been proven beyond a reasonable doubt. Counsel gave a list of reasons for her submission:

1. In respect of count 2, counsel argued that the Magistrate committed an irregularity by allowing a leading question by the prosecutor to Mr Erasmus in respect of the identification of accused 1 and accused 2 to be asked without interfering. I do not agree with this contention. One must have regard to the evidence which immediately preceded the question to which counsel refers. I quote the evidence:

“And as soon as I showed my gun I saw these two – and with all respect I can't remember you. But I remember these two guys showing their guns at me.”

The evidence of Mr Erasmus was that he could not identify accused 3 at all. There were only three accused before court.

The only other accused to whom Mr Erasmus could conceivably have referred, were accused 1 and accused 2. Consequently there was no leading question put by the prosecutor as contended for by the advocate.

2. Counsel further argued that Mr Erasmus was unsure of the identity of accused 2 and that this fact should have served to cast doubt on the other identification evidence of Mr Erasmus. The same basic argument was also addressed in respect of Mr Erasmus' failure or inability to identify accused 3. Surely it cannot be argued that because a witness can only identify one perpetrator and not another, cannot, per se serve to reject his identification evidence in toto. One must, in my view, have regard to the circumstances of the case in order to determine whether the failure to identify is to be considered to be a criticism of the identifying evidence. It seems to me that Mr. Erasmus' confessed inability to identify accused 2 or 3 with the same conviction as he identified accused 1 must rather in the circumstances be considered to present an assurance of the honesty and reliability of his evidence.

3. Counsel submitted that Mr Erasmus was unable to give a clear indication as to how long the incident took. She suggested that the opportunity which Mr Erasmus had to observe the robbers in order to make a reliable identification was thereby affected. Counsel further stated that it was only during cross-examination when Mr Erasmus suggested that he observed accused 1 for almost 5 minutes.

I believe that Counsel has misread and misquoted the evidence. In his evidence in chief, Mr Erasmus made it clear that the entire incident took approximately 15 minutes. The reference in his cross examination to the 5 minutes was in respect of the time when he was crouching on the floor. These are two distinct and separate aspects of his evidence.

4. Counsel further criticised the Magistrate for convicting accused 1 on the evidence before court in spite thereof that Mr Erasmus was unable to give any other description of accused 1 apart from the scars on his face. It was said that Mr. Erasmus could not testify what the robber he identified as accused 1 was wearing, except for a bracelet. Also that he could only testify that apart from having cuts to his face, the person he remembered was a black person. Reference was made to his evidence during cross-examination where he was unable to remember whether he had a deep voice or not, despite the fact that he said that person "did the major talking". Advocate Henzen submitted that Mr. Erasmus did not give satisfactory testimony as to why he pointed out Accused 1 on the identification parade held on the 10th of January 2005. The fact remains that he pointed him out with a 100% certainty.

9. Advocate Henzen argued that Mr. Erasmus did not give any description of the robbers to the police when he made his statement to the police. The fact is that he testified that they did speak about what clothing the robbers had worn. It must be born in mind that Mr Erasmus made his statement to the police directly after the incident, when things were clearly a bit chaotic, and in circumstances where the victims would have been stressed out because of the incident. What is clear is that the statement was taken in circumstances which were not conducive to the taking down of an accurate statement. In my view, Mr Erasmus satisfactorily answered these criticisms in his evidence.

10. It was argued to be possible that Mr. Erasmus only identified Accused 1 in court as one of the robbers because the police told him that his firearm was found where Accused 1 slept. I am not certain what this argument entails, but I would refer again to the substantial corroboration which exists on the record of the fact that accused 1 was one of the robbers. Also, the argument was not precipitated by any factual basis in the evidence.

11. Mr. Erasmus agreed that he, his wife and his daughter discussed the incident and the person with the bald head and the scars on his face; it was submitted that it was possible that the testimony of Mrs Erasmus was influenced by that discussions. Mrs Erasmus did not identify accused 1 at the identification parade. Michelle did. It is clear that her evidence was not overrated by the Magistrate, and quite correctly so. Her evidence was given its proper perspective of only being part of the overall evidence which proved the complicity of accused 1.

12. Counsel further pointed out that the identification of accused 1 by Mrs Erasmus was a so-called dock identification which should not carry much weight. It was argued that, consequently, there was insufficient evidence of identification of accused 1. The argument loses sight of the fact that Mr Erasmus and Michelle Erasmus identified accused 1 at an identification parade.

13. Criticism was leveled at the Magistrate's acceptance of the evidence of Michelle Erasmus. The fact of the matter is that she also pointed out accused 1 as one of the robbers at an identification parade, and, as was pointed out above, her evidence was not the only evidence which implicated accused 1.

14. Then it was said that Mr. Erasmus was not certain about the identity of the third person. This, it was submitted, should have served to create uncertainty whether his identification in respect of accused 1 was reliable. It seems to me that, at best, this evidence must be regarded as neutral. I have already dealt with this issue before, where I pointed out that it can also serve to fortify the reliability of the identification evidence of Mr Erasmus. Advocate Henzen further argued that the Magistrate erred in ­considering that the case had been proved against accused 2, based upon the identification of Mr and Mrs Erasmus. Counsel argued that both these witnesses were unsure of the identity of accused 2. Mr Erasmus did not identify him at the identification parade at all, while, so it was argued, Mrs Erasmus failed to point him out on the identification parade. Again, this submission does not accord with the record, where it appears that Mrs Erasmus pointed out accused 2 at the identification parade. As to the reliability of her evidence it has to be pointed out that she had testified that accused 2 had a "funny look" "as if he looks down on you", that he spoke in a loud voice, and she referred to the "way he stands". She also testified that he had a beard, which was not a full beard and the fact that his nose was "cut". She also said that he was "short". When one has regard to all the evidence, it is clear to me that the Magistrate was correct in concluding that it had been proved beyond a reasonable doubt that accused 2 was one of the robbers at the Suzuki shop.

68. I have already referred to the fact that accused 2 was arrested in the company of accused 1, and the fact that they were both identified as robbers in respect of account 2. In my view both accused 1 as well as accused 2 were correctly convicted by the magistrate on count 2.

* COUNT 3:

69. In respect of count 3, advocate Henzen submitted that Mr. Iqbal only made a doc-identification of Accused 1. He had testified that accused 1 was the robber with scars on his face. He first denied that he pointed out anyone to the police on the identification parade. Later he confirmed that he pointed out accused 1. It was submitted that the witness' identification was not reliable in the light of his uncertainty in regard to his pointing out of the suspect. The witness agreed that Accused 1 was the only person on the identification parade with scars on his face. It was submitted that the witness did not give a clear answer as to why he pointed out accused 1 on the identification parade.

70. It is my view that these criticisms are ill-founded. The fact that the witness could not recall at the trial that he pointed anyone out at the identification parade reflects on his ability to remember and not necessarily on his ability to identify. Whether he could explain why he pointed out accused 1 at the parade, is not of such paramount importance that his identification should be completely ignored.

71. Mr Iqbal made a dock identification of accused 1. He identified him by the scars on his face. He testified that it was accused 1 pointed a firearm at him in the shop. It was submitted by counsel that his identification of accused 1 in court, was not reliable. Nevertheless, it cannot be ignored that the witness pointed out accused 1 at the identification parade. Counsel put it down to the fact that accused 1 was the only person on parade with scar marks on his face. This matters not. The fact that he was the only person there, e.g., without a left ear, would not diminish the reliability of the identification, but would rather enhance it, in my view.

72. In any event, according to accused 2, he also had scars on his face.

73. Advocate Henzen also argued that although Mr. Nguni testified that a cellphone was recovered from the shack of accused 1, that cellphone was not identified as one of the cellphones which were robbed from the Building Supply Shop. I find myself in disagreement with the submission, as I am of the view that the record shows that the cellphone was in fact properly identified.

74. In summary, I find no reason to interfere with the convictions of the two accused by the Magistrate, apart from the conviction of accused 1 on count 1, as I already pointed out.

* SENTENCES:

75. Counsel for the State supported the sentences pronounced by the magistrate on accused 1 and accused 2. He emphasised the fact that the robbery had been planned in advance and that the robberies were perpetrated by robbers who acted with a common purpose. He also emphasised the fact that firearms were used during the robberies. One might add to this list the fact that a shot was fired during the robbery at the S. Whether by accident or design, fact remains that people's lives were placed in jeopardy by the accused at the Suzuki shop, and that Michelle Ersamus was jerked around by accused 1. One must take into account also, the anxiety of the victims who were confronted with firearms in both counts 2 and 3.

76. Counsel for the State submitted that no substantial and compelling circumstances were shown to exist which might justify a lesser sentence than the prescribed minimum sentences of 15 years imprisonment in terms of the provisions of the Criminal Law Amendment Act, 105 of 1997, to be imposed (S v Malgas 2001 (1) SACR 469 (SCA). Although the case was specifically directed at motor vehicle hijackings, counsel argued that the judgment in the case of S v Msimanga en 'n ander 2005 (1) SACR 377 (0) at 381 d - h, was of equal application to the present case, where it was stated:

“Gewapende rooftogte, en meer besonderlik, gewapende motorkapings, is nie net in die regsgebied van hierdie Hof nie, maar ook landwyd, aan die orde van die dag. In hierdie land is geen mens wat dit mag waag om per motor te ry, meer veilig nie. Die swaard van Damokles hang voortdurend oor die bestuurder en sy reisgenote, dat hulle motor gekaap kan word met dikwels noodlottige gevolge. Die publiek is geregtig om ongestoord en veilig die paaie te gebruik, vir die doel waarvoor dit bestem is. Hierdie reg word huidiglik wreed versteur deur die oormaat motorkapings wat hedendaags hoogty vier. Hierdie tipe misdaad word net uit gierigheid en hebsug gepleeg. Die skurke wat dit doen, toon geen respek vir die liggaam en eiendom van die slagoffers nie. Word daar weerstand gebied, word die slagoffer gewoonlik summier tereggestel.

Die noodkreet van die besorgde publiek roep luid vir die herstel van 'n veilige en vreedsame sosiale orde. Die bestaansgrond van ons strafregstelsel is om die belange van die samelewing te dien; en strafvoltrekking, as integrerende deel daarvan, het dieselfde bestaansrede en strewe. Gewelddadige optrede, van watter aard ook al, kan nie langer geduld word nie, daarom moet swaarder vonnisse opgelê word wat enersyds die boodskap sal uitdra dat gewelddadige gedrag nie langer verdra sal word nie en andersyds, aan die publiek, dat dit die erns van die howe is om veilige lewensomstandighede te herstel en te handhaaf.

Afskrikking is die oorheersende en universeel erkende doel van straf. Omdat geen beskaafde gemeenskap barbaarse wandade sal duld nie, moet afskrikking en vergelding, as oogmerke van straf, veral by geweldsmisdade, voorrang geniet en speel voorkoming en hervorming 'n ondergeskikte rol.”

77. Advocate Henzen, on the other hand, submitted that the Magistrate did not properly consider the question of substantial and compelling circumstances in respect of counts 2 and 3. Counsel also referred to S v Malgas 2001 (1) SACR 469 (SCA), where the court summarised its approach in determining the existence of substantial and compelling circumstances.

Counsel submitted that the Magistrate failed to take into account that no force was used to commit the crimes, that the complainants in counts 2 and 3 were not injured, and that both accused were first offenders. Consequently it was argued that the Magistrate erred in not finding that there were substantial and compelling circumstances which enabled him to deviate from the prescribed minimum sentence.

78. In respect of the length of the sentences pronounced, counsel referred to S v Khumalo 1989 (3) CPD at page 331, where it was said:

“It is the experience of prison administrators that unduly prolonged imprisonment, far from contributing towards reform brings about complete mental and physical deterioration of the prisoner”

and to S v Skenjana 1985 (3) 51 (A) at 55 D, where it was said:

“The public interest is not necessarily best served by the imposition of very long sentences of imprisonment. As far as deterrence is concerned, there is no reason to believe that the deterrent effect of a prison sentence is always proportionate to its length.”

79. In addition it was argued that the cumulative effect of the sentence periods were not properly considered. The effective period of imprisonment of 30 (actually 35) years in respect of Accused 1, was submitted to be shockingly inappropriate in light of the fact that nobody was killed nor was there any forced used. One might add that in neither count 2 nor count 3 was there any substantially large amounts of money or goods taken.

80. In view of the above it was submitted by advocate Henzen that this Court ought to interfere with the sentences imposed in respect of both accused.

81. Counsel for the appellants did not address any argument to us in respect of counts 4 and 5. This is not surprising in view of the fact that accused 1 was found in possession of three firearms and ammunition.

82. As stated, in respect of counts 4 & 5, the magistrate ordered that they be taken together for purposes of sentence with the sentence count 1. The magistrate consequently did not impose a separate sentence in respect of these two counts. As is a result of the fact that count 1 and the sentence imposed in respect thereof cannot stand, it remains for this Court to deal with a proper sentence in respect of counts 4 and 5. As the magistrate had considered it appropriate that the sentences in respect of those counts should be served concurrently with the sentence on count 1, it appears to me to be appropriate that the sentences in respect of those counts should be ordered to run concurrently with the sentence in respect of either count 2 or count 3.

83. The problem being that the magistrate did not pronounce a sentence in respect of counts 4 or 5. The options which are open appear to be:

1. To remit the matter to the magistrate to impose a sentence in respect of counts 4 and 5, and

2. After having done so, to order that the sentences so imposed, run concurrently with the sentence imposed in respect of count 2 on accused 1.

Alternatively: that this Court pronounces a sentence in respect of those two counts, or thirdly, simply ordering that counts 2,4 and 5, be taken together for purposes of sentence.

84. Counsel for the appellants also argued that this Court should intervene in the sentence is which were imposed by the magistrate. Counsel argued

1. No force was used during the commission of the crimes;

2. The complainant in counsel 2 and 3 were not injured;

3. Both the accused's were first offenders.

85. Counsel argued that, upon these submissions, that the magistrate erred in and not finding substantial and compelling circumstances to have presented in the case.

86. In his judgment, the magistrate highlighted some considerations which he took into account. He pointed out that accused 1 was 25 years old, single with no dependants and was unemployed at the time of the commission of the offense.

87. In respect of accused 2 the magistrate noted that he was 37 years old, had a wife and 5 children. He did this work and earned is R 325 per week. No other circumstances were apparently placed before the magistrate as extenuating circumstances.

88. The magistrate took note of the fact that both the accused were first offenders.

89. Although the magistrate did not refer by name to the fact that he might have been inquiring into the existence of substantial and compelling circumstances, it is a fair inference that that was what he was doing when he considered the aspects which I have referred to in his judgment on sentence.

90. I am unable to discover substantial and compelling circumstances in the present case. The robberies were conducted with the use of firearms. Accused 1 fired a shot in the Suzuki shop, and whether by accident or design, the fact remains that the lives of people were threatened during the robbery. There is no telling what might have happened had any of the complainants or witnesses in either count 2 or count 3 offered resistance.

91. In my judgment I accordingly find that there were no substantial and compelling circumstances present in the case.

92. In respect of accused 2, the sentence imposed upon him in respect of count 2 was 15 years imprisonment in terms of the General Law Amendment Act, 105 of 1997. In my view this sentence cannot be interfered with.

93. One last matter remains to be discussed. The question which presents itself is whether it is permissible to order sentences in terms of the Criminal Law Amendment Act of, 105 of 1997, to run concurrently. Section 51 (5) of that Act provides:

“The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in section 297 (4) of the Criminal Procedure Act, 1977 (Act 51 of 1977).”

94. It seems to me that if the legislature intended to place a restriction upon the concurrent serving of sentences which are imposed in terms of the Act, it would have done so in clear terms. By virtue of the absence of such a clear provision, it seems to me that it is permissible for a Court to order that the sentences in respect of counts 4 and 5 be served concurrently with the sentence imposed in respect of count 2, which is a so-called “minimum sentence”.

* ORDERS:

1. The first appellant's appeal against his conviction and sentence on count 1 is upheld. His conviction and sentence are set aside, and he is found not guilty in respect of count 1.

2. The appeal by the first appellant against his convictions on counts 2, 3, 4 and 5, is dismissed and those convictions are confirmed.

3. The sentences imposed by the magistrate upon the first appellant in respect of counts 2 and 3 are confirmed, subject to what is stated below.

1. The first appellant is sentenced to three (3) years' imprisonment on count 4 and to one (1) years' imprisonment on count 5.

2. The sentences in respect of counts 4 and 5 are to run concurrently with each other, and with the sentence on count 2.

3. It is ordered that ten (10) years' imprisonment of the sentence on count 3, shall run concurrently with the sentence on count 2.

4. The appeal by the second appellant against his conviction and sentence in respect of count 2 is dismissed and his conviction and sentence on that count are confirmed.

L J L VISSER,

ACTING

JUDGE OF THE HIGH COURT

I agree:

E

JORDAAN

JUDGE OF THE HIGH COURT

DATE: 28 November 2007