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JOSEPH GCABASHE Appellant No 1

MNUXA JEROMA GCABA Appellant No 2

AND

THE STATE Respondent

Case No 61/87 mp

IN THE SUPREME COURT OF SOUTH APRICA (APPELLATE DIVISION)

In the matter between:

JOSEPH GCABASHE Appellant No. 1 (Accused

No. 2 in Court a quo)

MNUXA JEROMA GCABA Appellant No. 2 (Accused

No. 3 in Court a quo)
and
THE STATE Respondent

CORAM: VAN HEERDEN, GROSSKOPF, JJA et STEYN, AJA

HEARD: 11 September 198 DELIVERED: 30 September 1987

JUDGMENT

STEYN , AJA

2.

STEYN, AJA,
Both appellants were sentenced to death by BROOME, J on December 12 1986 on each of two counts, one of murder and the other of housebreaking with intent to rob and robbery with aggravating circumstances.

They had been arraigned before him sitting with two assessors at Scottburgh in the Circuit Local Division for the Southern District of Natal. At the trial appellants appeared as accused no's 2 and 3 with two other accused. They were jointly charged on three counts, the first being murder, the second attempted murder and the third house= breaking with intent to rob and robbery with aggravating circumstances. The gist of these counts was that on the 5th of June 1986 at the Oribi Gorge Hotel in the district of Port Shepstone they murdered Timothy Peter James Jeffreys (the deceased), attempted to murder his wife, Olive Alexandria Jeffreys (the complainant), and broke into and entered the said hotel, the residence of deceased and

complainant,

3.

complainant, with intent to rob them and then robbed them of one .32 revolver, 3 rounds of ammunition, R400 in cash, a cheque book, a purse and three bundles of keys.

All four accused pleaded not guilty, each denied any participation in the alleged offences, and each raised an alibi as defence. Accused no 1 was acquitted on all counts but the appellants and accused no 4 were convicted on count 1 of murder on the basis of dolus eventualis; on count 2 they were convicted of assault with intent to do grievous bodily harm, also on the basis of dolus eventualis; and on count 3 they were convicted as charged, but as to the robbery apparently only in respect of the purse, the revolver, the keys and "the money" (i e R200 - R300).

In respect of the murder the majority of the Court found that there were extenuating circumstances in the case of accused no 4, but unanimously found that there were none in the cases of the appellants. The extenuating circumstances found in respect of the fourth accused were

that
4 . that he was 21 years of age at the tlme of the murder, that he was younger, less intelligent and less mature than accused no's 2 and 3 and that he was possibly influenced by them to join in the offences resulting inter alia in the murder of the deceased, "something that he on his own or with people with his own level of maturity might not have done."

Accused no's 2 and 3 were respectively 22 and 23 years old on the 5th of June 1986.

Por the purposes of the discretionary sentences previous convictions were proved against accused 2 and 4 which they admitted. Accused no 2 (first appellant) admitted four previous convictions of housebreaking with intent to steal and theft, comprising eleven counts in all, during the period August, 15, 1977 to November 1979. In respect of the first, second and third convictions he was sentenced as a juvenile offender, to cuts with a light cane for the first and second convictions and for the third to

be
5. be sent to a reform school as defined in sec 1 of the Childrens' Act, 1960. On the fourth occasion (seven counts) he was sentenced to a total of 42 months' imprisonment conditionally suspended for 5 years.

The fourth accused admitted three previous convictions for housebreaking with intent to steal and theft and one for possession of dagga, during the period November 14 1979 to November 18 1985. In respect of the first and second convictions for housebreaking he was sentenced as a juvenile to cuts with a light cane and for the third (the fourth of the previous convictions, that in respect of dagga being the third) to 9 months' imprisonment on November 18 1985. In this offence R1 069 worth of clothing was involved.

Regarding count 3 mitigating circumstances (being mainly the same as the aforementioned extenuating circumstances) were found by the learned Judge to be present in the case of accused no 4, but none in respect of

appellants

6

appellants.

The mandatory death sentence for the murder was then imposed upon the appellants, as well as the discretionary death sentence on count 3, the learned Judge having found in respect of that offence that it was "an extreme case and a proper one for the death sentence" even though he accepted that there may well be more serious cases of that nature. On count 2 he sentenced appellants to imprisonment for 18 months and 2 years respectively.
Accused no 4 was sentenced as follows:

On count no 1 - 10 years' imprisonment;

On count no 2 - 18 months' imprisonment;

On count no 3 - 8 years' imprisonment.

It was ordered that all three sentences run concurrently.

Appellants were given leave by the Court a quo

to appeal against the finding that there were no extenuating

and circumstances in their cases and against the mandatory and

discretionary death sentences; but leave to appeal against

their

7.
their convictions was refused. In considering their appeals the Trial Court's findings of fact on the merits will consequently have to be accepted.

Those findings and the relevant admitted or undisputed facts are briefly the following:-

The deceased and complainant were an aged couple who owned and had for many years been running the Oribi Gorge Hotel, which is about 24 km inland from Port Shepstone. They resided in a separate set of rooms in the hotel. Their married son, Kenneth, occupied a separate dwelling on the hotel premises, 80 - 100 metres from the main building. During the night of the 4th/5th June 1986 they were all at home. There were no guests staying overnight and the old couple were the only residents in the hotel.

Deceased suffered from emphysema and went to bed before his wife. On retiring at 11 pm she unlocked the front door of the hotel as had been her wont for 39 years so as to enable a servant to enter early in the morning to

make

8.

make the kitchen fire.

Their living-quarters consisted of a private lounge entered from the reception area at the front door, a bedroom entered from the private lounge and, entered from the bedroom, a combined dressing-and bathroom (the latter being partitioned off from the former). According to the police sketch plan (part of exh C) the lay-out of these quarters was then as follows. Coming from the front door one would have had to turn left in the reception area to enter the private lounge, then proceed straight through to the bedroom, the door of which was directly opposite the entrance to the lounge. On entering the bedroom there were two beds to the right front at rightangles to the bedroom door, with their heads against the right-hand wall. Deceased's bed was furthest from the door and was separated from complainant's by a bedside table. To reach his bed one would have had to pass by the foot of complainant's.

On

9.
On entering the bedroom one had to turn to the right to rêach the dressing-room door which was at rightangles to the bedroom door. To the left of the dressing-room door and inside the dressing-room area there was a short passage between the bathroom partition and the bedroom wall. At the end of this passage there was a narrow door opening outwards onto the verandah on which there were several tables with chairs.
On the night in question none of these doors were locked but complainant closed the bedroom door when she retired. She put off her light at about midnight and she and her husband went to sleep. The bedroom was then semi-dark, being dimly lit by a very bright outside light on the hotel premises which shone through the thin white curtains at the bedroom window. The deceased always kept a revolver near his bed but complainant did not know exactly where.

At what must have been about 02h00 complainant was woken by the door to the lounge "flying open". Four

persons

10. persons rushed into the bedroom and made straight for the deceased's bed but she could not see what they did to him. One of the intruders then took her by the throat. He had a knife. She resisted him and during the course of the struggle was badly cut on her left hand. (The tendons of her left ring and little fingers were severed in the process and those fingers became permanently useless). Whilst so struggling with him she asked her assailant what he wanted. One of the four replied in English that they wanted money and firearms. She then noticed the deceased "floundering" (as she called it) and wondered why he was taking so long to produce his revolver. Then he got up and as he did so she noticed that he had the firearm in his hand and that he had blood on his pyjamas and was "bleeding freely from his shoulder." She realised that he had been stabbed, although she had not seen anyone doing so. Deceased raised his revolver but did not fire, and asked the intruders what they wanted. Without replying all four pounced upon him and

disarmed .......

11.

disarmed him. One of them then switched on the bedroom light and she saw that all of them were masked, wearing "balaclava-like" apparel coming down over their heads to their waists, with openings only for their eyes, hoses and mouths. They ransacked the room and one removed her purse containing about R200 - R300 from her handbag which had been taken from the drawer where it had been kept. They also removed her safe keys, the kitchen keys and deceased's safe keys. But they apparently wanted more money.

Complainant then decided to escape from them and to take the "floundering" deceased with her. Holding him in front of her and guiding him, she said to the intruders "come on, I'll show you where the money is". She then moved towards the narrow verandah door via the dressing-room and passage. The intruders followed, her assailant holding a knife to her back. On the way she repeated her request in a loud voice. The one walking behind her with the knife warned her to keep quiet, saying "shh, I'll kill you if you

don't......

12.

don't keep quiet." On reaching the verandah door at the end of the passage, she opened it, pushed the deceased through it onto the verandah and slammed the door shut in the faces of the intruders. They apparently turned tail and made off with their loot.

Complainant seated the deceased at one of the verandah tables and went to phone her son for help. He received the call at about 02hl5 and immediately came to the aid of his parents. The deceased was by then in a state of collapse. Kenneth took his father and mother to the Port Shepstone hospital but deceased was dead on arrival. He had several wounds and hurts, the most serious of which was a stab wound on the right shoulder which entered his body in the vicinity of the shoulder blade and penetrated to a depth of 8 - 10 cm, severing major blood vessels and

collapsing the right lung. This wound caused considerable

bleeding into the chest cavity, 1 ½ 1 of blood being found

there. This was clearly a knife wound and if an Okapi

knife

13.

knife had been used to inflict it, the knife would have penetrated to the full length of the blade. On the deceased's left shoulder there was a smaller wound, 2 - 3 cm deep, probably inflicted with a screwdriver. On the deceased's forearms there was a loss of skin consistent with a struggle during which he was held by the forearms and struggled to free himself, the grip and the wrenching causing the skin to strip. In the post mortem report (exh D) the age of deceased is given as 81 years and the medical evidence is that the aged tend to suffer damage to their skins more easily than do younger persons. The cause of the deceased's death was, however, the stab wound on the right shoulder.

By virtue of (i) a palm-print of accused no 2 found in the private lounge on the frame of the door to the reception area, (ii) statements made by accused no's 2, 3 and 4 to a magistrate during proceedings in terms of sec 119 of the Criminal Procedure Act, no 51 of 1977 and (iii) certain pointings-out by each of them, the Trial Court

found

14.
found that these accused were three of the four persons who , had broken into the hotel and into the bedroom, assaulted the aged couple and robbed them as aforesaid, that they had acted in the execution of a pre-conceived common purpose, and that it was accused no 3 (second appellant) who had fatally stabbed the deceased and wounded the complainant. These are the findings upon which the convictions were based. It must also be mentioned that in the sec 119 proceedings accused no 4 admitted that he had been armed with a screwdriver.

Turning now to a consideration of the appeals I deal firstly with the question whether the Court a quo erred in finding that no extenuating circumstances existed in the appellants' cases.

The learned Judge formulated the Court's finding as follows:

"Extenuating circumstances have been defined in a number of cases and it is not necessary to repeat the definition. The factors which the

Court

15.

Court considers weigh against Accused No. 2 in this case are the element of premeditation - he speaks about this in his statement; the discussions which preceded the incident. As regards his role, the basis for his guilt has already been explained. Although it is a case of dolus eventualis, it is not a case in which that dolus only operates remotely. It cannot be labelled as an unfortunate case and something that although was foreseen was somewhat remote. It was not a case for instance, of a stray stab wound effected on the point of departure. There was in this case a fairly intense struggle. It is so that the cause of death was a single stab wound but sight must not be lost of the fact that there was a fight; there was a struggle; the deceased did have the skin torn off his forearms and he did have a second wound on his other shoulder.

As regards Accused No. 2, his age is given as" 22 but the impression he created when he gave evidence was that of a mature young mah and in the assessment of the Court, immaturity is totally absent.

So as regards Accused No. 2 then, the Court can find no circumstances which operate to reduce his moral blameworthiness.

As regards Accused No. 3, much of what has been said applies to him. The starting point is perhaps that he appears to the Court to be a little more mature and a little older than

Accused

16.

Accused No. 2. He played a major role. It was he who entered with an open knife. It was he who stabbed the deceased and then it was he who stabbed the complainant. In all the circumstances, we can find no basis upon which it can be held that there were circumstances which must have affected his mind so as to render his conduct morally less reprehensible."

I can find no fault with that conclusion. It is clear that appellants and their fellow miscreants had planned the break-in for the purpose of robbing the aged couple of their money and firearms and had masked themselves for that nefarious purpose. That they knew exactly where the deceased was sleeping and intended to put him out of action forthwith is graphically demonstrated by the way they pounced upon him immediately upon bursting into the bedroom, by-passing the complainant for the moment. But the way complainant was thereafter also assaulted and wounded and the deceased manhandled in the process of disarming him, (during the course of which he must have suffered the said loss of. skin), equally demonstrates their joint intention of over= whelming their victims with physical and armed force.

When
17. When the bedroom light was switched on they must at least then have realised that they had to do with two very old persons and that the deceased had been seriously wounded; but that did not cause them to relent. Appellants had already reached the age of discretion and must have realised that one or other of their victims could be fatally hurt in the process of overwhelming them. To my mind the Court a quo was correct in its estimation that in appellants' case the dolus here in issue did not operate remotely. Indeed, it clearly came very close to dolus directus. They were not moved by any dire material need to break into the hotel and to assault and rob their victims. It was clearly greed that so moved them.

This Court has repeatedly emphasised that dolus eventualis is not by itself an extenuating circumstance. It is only when it is considered in the context of the relevant surrounding circumstances that it might have a contributory extenuating effect. It had no such effect in the present

case
18. case. The Court having correctly found that there were no extenuating circumstances, the learned Judge was obligedto sentence the appellants to death for the murder of the deceased. Their appeals against that finding and the death sentences imposed for the murder of the deceased must consequently fail.

I now proceed to consider their appeals against the imposition of the death sentences on the third count. In the present matter those were discretionary sentences which could be imposed by the learned Judge in terms of sec 277 (l)(c) of the Criminal Procedure Act, 1977.

It was urged upon us on appellants' behalf that the learned Judge had failed to exercise his discretion properly in that when deciding upon sentence he had failed to divorce his mind from the fact that the deceased had been killed and that he had also failed to consider a long term of imprisonment as a suitable alternative to the death

sentence.

The
19. The test to be applied by this Court in deciding whether a Trial Judge had properly exercised his discretion in passing sentence has recently been reformulated and clarified in S v Pieters 1987(3) SA 717(A) in the following terms by BOTHA, JA at 727 F - 728C:-

"Met betrekking tot appelle teen vonnis in die algemeen is daar herhaaldelik in talle uitsprake van hierdie Hof beklemtoon dat vonnisoplegging berus by die diskresie van die Verhoorregter. Juis omdat dit so is, kan en sal hierdie Hof nie ingryp en die vonnis van 'n Verhoorregter verander nie, tensy dit blyk dat hy die diskresie wat aan hom toever= trou is nie op 'n behoorlike of redelike wyse uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir hierdie Hof om 'n Verhoorregter se vonnis te verander alleenlik as dit blyk dat hy sy diskresie op 'n onbehoor= like of onredelike wyse uitgeoefen het. Dit is die grondbeginsel wat alle appelle teen vonnis beheers. Met die toepassing van daardie beginsel in individuele gevalle word daar in die uitsprake van hierdie Hof van tyd tot tyd verskillende toetse, hulpmiddels en maatstawwe geformuleer en aangewend om, na gelang van die besondere omstandighede wat onder behandeling is, te bepaal of ingryping geregverdig sou wees. Wat dit betref, is daar soms verskille in die bewoording wat in verskillende uit= sprake aangetref word. Sulke verskille moet

met

20.

met omsigtigheid benader word, want dit sou verkeerd wees om -'soos advokate te dikwels geneig is om te doen - 'n oënskynlik algemene stelling, wat toepaslik is in die samehang van die besondere feite wat behandel word, uit die verband van 'n uitspraak as geheel te neem en te probeer, amper asof dit die krag van 'n statutêre voorskrif het of 'n wet van Mede en Perse is, om dit op 'n andersoortige stel feite toe te pas waarop dit in der waarheid nie toepaslik is nie. Dit is daarom dat ek hierbo weer eens die grondbeginsel beklemtoon het: per slot van sake is dit daardie beginsel wat uiteindelik en altyd van deurslaggewende belang is. In verband met daardie beginsel sou ek nog net een verdere oorweging wou byvoeg. Hierbo het ek verwys na gevalle waar 'dit blyk' dat die Verhoorregter sy diskresie op 'n onbehoorlike of onredelike wyse uitgeoefen het. Dit moet verstaan word in die sin dat hierdie Hof op appel daarvan oortuig moet wees dat die uitoefening van die diskresie op onbehoorlike of onredelike wyse geskied het. Na my mening spreek dit eintlik vanself, want, iuis omdat hierdie Hof nie sonder meer 'n eie diskresie het om uit te oefen nie, sou daar sonder sodanige oortuiging geen voldoende rede bestaan om in te gryp nie."

At p 734 E the learned Judge added the following,

in considering the effect of this Court's judgment in
S v M 1976 (3) SA 644 (A):-

"Met

. 21.

"Met die oog op hierdie oorwegirígs is ek van mening dat die twee formulerings genoem deur MULLER, AR saamgesnoer kan word in een enkele vraag: of die Verhoorregter redelikerwyse die vonnis kon opgelê het wat hy wel opgelê het. Dit is die deurslaggewende vraag: as die antwoord daarop bevestigend is, is dit die einde van die saak."

In dealing with the approach to be adopted by this Court in deciding whether a discretionary death sentence should be confirmed or set aside, BOTHA, JA said the following at 735 B - D:-

"Dit kom dus net hierop neer dat hierdie Hof nie sonder meer sy eie oordeel oor 'n gepaste vonnis in die plek sal stel van die oordeel van die Verhoorregter nie. Maar dit sluit nie die moontlikheid uit dat hierdie Hof homself die vraag kan afvra of hy in die eerste instansie die doodvonnis sou opgelê het, en indien hy oortuig is daarvan dat hy dit nie sou gedoen het nie, dat dit sou kon lei tot ingryping en die tersydestelling van die doodvonnis wat die Verhoorregter opgelê het nie."

This Court has also repeatedly stressed the

necessity for a consideration by the Trial Judge of a

long

22.

long term of imprisonment as a suitable alternative to a discretionary death sentence. See eg S v Letsolo 1970(3) SA 476 (A) at 476 - 477; S v Bapela and Another 1985(1) SA 236 (A) at 244 D - E and 245 P - G; and S v Pieters, supra, at 731 D - G. If he failed to do so, such failure could, depending upon the particular circum= stances pertaining to the case in question, amount to a misdirection vitiatíng the exercise of his discretion.

Murder and robbery are separate offences, even
when the former is committed in the course of committing
the latter (S v Prins en 'n Ander 1977 (3) SA 807 A at 815 E -

H.) In determining what the sentence should be for a

robbery with aggravating circumstances the fact that a
murder was also committed in the course thereof must

consequently be ignored. To do otherwise would in effect

be to punish the malefactor twice for the same killing,

and would amount to an improper exercise of the judicial

discretion.

In
23. In order to determine whether the learned Judge could reasonably have sentenced appellants to death on the third count it is necessary to take note of what he said in so sentencing them. These were his words in addressing them after he had sentenced accused no 4 as aforementioned:

"Accused Nos 2 and 3, in view of the fact that Accused No 3 perpetrated the assault on the complainant, you must receive a marginally greater sentence than Accused No 2 on count 2. I sentence Accused No 2 to Eighteen (18) months' imprisonment and Accused No 3 to Two (2) years' imprisonment. But on count 3 I must say that I view this case as extreme. People who behave as you did, mature men who behave as you did, are a menace to society. You and two others burst into this bedroom in the early hours of the morning; you attacked and subdued the deceased; you subdued the complainant; you ransacked the place; you took what you could find in the form of money, keys and a firearm and you left behind a shambles. It may well be, and I accept that there are more serious cases than this, but that does not prevent me from treating this as an extreme case and a proper one for the death sentence.

The upshot of this is that on count 1, I pass the sentence that the law demands -I sentence you both to death and on count 3

in

24.

in the exercise of my discretion, I sentence you both to death."

Although the learned Judge did not in so many words say that he had not taken the murder into account in deciding upon the sentence on the third count, his silence thereon does in the particular circumstances of the present matter indicate that he had failed to divorce his mind from the fact that the deceased was fatally injured during the robbery. The learned Judge's use of the word "subdued" instead of "murdered" or "fatally injured", in referring to the deceased,although correct in the context of the robbery, is nevertheless equivocal and not a clear indi= cation that he did exclude the killing from consideration.

His failure to make any mention of having considered a long term of imprisonment as an alternative to the death sentence is, however, another matter. I am mindful of the following remarks by BOTHA, JA in

S v Pieters

25.

S v Pieters,supra, at 728 D - G:

"Die beweerde mistasting was kort en saaklik dit: dat die Verhoorregter nie in sy uitspraak oorweging geskenk het aan die oplegging van 'n lang termyn van gevangenis-straf as 'n moontlike alternatiewe vonnis tot die oplegging van die doodstraf nie. Alhoewel die Verhoorregter nie in sy uitspraak uitdruklik melding maak van die moontlike alternatief van gevangenisstraf in plaas van die doodstraf nie, is dit na my mening heeltemal ondenkbaar dat hy nie inderdaad daardie moontlike alternatief oorweeg het nie. Waar 'n Verhoorregter in 'n ernstige verkragtingsaak oorweeg of hy die diskresionêre doodvonnis gaan oplê, kan hy nie anders as om terselfdertyd die alternatief van gevangenisstraf te oorweeg nie, want hierdie twee moontlikhede is per slot van sake die enigste alterna= tiewe waaroor hy denkbaar kan besin."

The learned Judge was there dealing in terms with a serious rape, but what he said is equally apposite to housebreaking with intent to rob and robbery with aggravating circumstances.

Although BOTHA, JA seems in the last sentence of the above-quoted passage to have formulated a

general
26. general rule, it is nevertheless notionally possible that a trial Judge may fail to consider such an alternative sentence. That is in fact what did happen in S v Bapela, supra. Each case must consequently, and of necessity, be considered upon its own facts.

In the present matter the mitigating factors relating to accused no 4 in respect of the third count, were not very strong and his moral blameworthiness for that offence was not much less than that of appellants'. Yet, he was only given a relatively moderate sentence of 8 years' imprisonment therefor. The disparity between his moral guilt and that of the appellants', (especially in the light of his previous convictions, which indicate that he was

by no means an "innocent" easily susceptible to manipula=

without more tion) was not so marked as to have justified without more the great

quantum leap from a moderate prison sentence in his case

to the death sentence in theirs, and had he addressed his

mind thereto the learned Judge could not have considered

that it did.

Bearing

27.

Bearing this in mind and adverting to the laconic remarks by the learned Judge in sentencing accused no 4 to imprisonment and appellants to death almost in the same breath as it were on the second count, he must have considered and reiected the alternative of a term of imprisonment in appellants' cases. This is therefore an instance where the remarks of BOTHA, AJ in S v Pieters (supra) clearly apply. In so sentencing appellants and accused no 4 on the second count, it is clear that he had, however, ,indeed failed to divorce his mind from the fact that they had murdered the deceased during the course of the robbery. The learned Judge must then again have taken into account the extenuating circum= stances found by the Court to have been present in the case of accused no 4 on the murder count in deciding upon the sentence to be imposed upon him on the second count. The aforementioned great quantum leap from the sentence imposed upon accused no 4 to that imposed upon appellants cannot be explained upon any other acceptable ground. The learned Judge's failure to leave the murder

out

28.

out of account in sentencing appellants for the house= breaking and robbery was a material misdirection which had the effect of vitiating the exercise of his discretion.

This Court is consequently at large to determine anew the proper sentence for appellants on the third count. Taking into account that deceased was seriously wounded during the course of the robbery (S v Cain 1959 (3) SA 376 (A) at 383 D - F, and S v Moloto 1982 (1) SA 844 (A) at 854) but excluding from consideration the fact that he died as a result thereof, and according due weight to the other aforementioned circumstances, I am satisfied that the offence does not merit the death sentence. The appeal against those sentences must, therefore, be allowed.

It was nevertheless a very serious offence, and the fact that it was perpetrated at night upon an isolated

and

29.

and aged couple in their dwelling, are gravely aggravating circumstances meriting a very long term of imprisonment. The fact that their fellow male= factor was relatively lightly punished for the same . offence is, however, a factor which must be taken into consideration. In my estimation the blameworthiness of appellants is on a par. First appellant has a list of previous convictions which bear some relation to the present offence, whereas second appellant is a first offender. The latter was, however, the one who wielded the knife and wounded both deceased and the complainant. In view of the aforegoing, I consider that the two appellants should each be sentenced to 15 years' imprisonment.

In

30.

In the result the following orders are made:-

1)	The appeals of both appellants against the death sentences on count 1 (murder) are dismissed.
2)	(a) The appeals of both appellants against the death

sentences on count 3 (housebreaking with intent to rob and robbery, with aggravating circumstances) are allowed. (b) The sentence of death on count 3 in respect of each appellant is set aside and a sentence of 15 years' imprisonment is substituted.

M T STEYN, AJA

VAN HEERDEN, JA )
Concur GROSSKOPF, JA )

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