SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A132/2023
In the matter between:
TSHELE THAPELO GABRIËL Appellant
and
THE STATE Respondent
Coram: R. Strydom et Noko JJ, and Cox AJ
Heard: 17 November 2025
Delivered: 26 February 2026 - This judgment was handed down electronically by
circulation to the parties’ representatives by email, uploading to CaseLines
and released to SAFLII. The date and time for hand- down of the judgment
is deemed to be 10h00 on 26 February 2026.
Summary: Appeal against conviction and sentence – appellant convicted by trial court
on three counts of murder, housebreaking, and attempted robbery based on common
purpose – appellant transported assailants to and from crime scene without proven prior
knowledge of criminal intent – appeal court found circumstantial evidence and pointing
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
(3) REVISED
2
out insufficient to establish common purpose – application of R v Blom principles
highlighted ambiguity of appellant's utterance – trial court findings set aside – appellant
convicted as accessory after the fact under section 257 of the Criminal Procedure Act
51 of 1977 for assisting surviving perpetrator to evade justice – sentences antedated
resulting in immediate release.
JUDGMENT
Cox AJ (Strydom and Noko JJ concurring)
Introduction
[1] This is an appeal against both conviction and sentence. The appellant was
convicted by the trial court on three counts of murder (counts 1 to 3), one count
of housebreaking with intent to commit an offence (count 4), and one count of
attempted robbery with aggravating circumstances as defined in section 1 of the
Criminal Procedure Act 51 of 1977 (“the CPA”) (count 5). He was acquitted on
the alternative to count 5 and on the firearm related charges (counts 6 to 8).
[2] Following conviction on counts 1 to 5, the trial court imposed the following
sentences:
Count 1: Life imprisonment
Counts 2 and 3: 20 years’ imprisonment on each count
Count 4: 3 years’ imprisonment
Count 5: 10 years’ imprisonment
All sentences were ordered to run concurrently with the sentence of life
imprisonment.
[3] The trial court refused the appellant’s application for leave to appeal. A petition to
the Supreme Court of Appeal thereafter was successful, and leave was granted
to appeal against both conviction and sentence.
3
[4] In issue before us is the trial court’s finding that the appellant acted in common
purpose with the three males that unlawfully entered the Lipschitz residence
leading to the demise of Mr Lipschitz. It was said that the appellant was oblivious
as to what the others were going to do after he had dropped them, as he only
transported them. In addition, it was stated that the circumstantial evidence that
the court a quo relied upon was insufficient as it was capable of other inferences
than that the appellant was part of the assailants.
[5] The facts of the case are therefore determinative of the issue whether the
appellant was a participant in the crimes committed.
Factual Matrix
[6] On 28 January 2013, at approximately 20:30, the Lipschitz family was enjoying
the tranquillity of their home at 11 Tennyson Road, Senderwood, Germiston
when their peace was violently disrupted by a burglary. A gun battle ensued
between the intruders and Mr Lipschitz senior. During the shootout, Mr Lipschitz
and two of the intruders sustained fatal injuries. A third intruder escaped and
contacted the appellant, who had been waiting nearby to ferry them back to
Alexandra. They met at the prearranged pickup point. Upon boarding the vehicle,
he told the appellant that a shootout had taken place and that the homeowner
and two assailants had been fatally wounded. He instructed the appellant to
leave the area immediately. The appellant complied and drove back to
Alexandra.
[7] The appellant insisted that he merely provided transport to three individuals. He
claimed to be a businessman and taxi owner who was approached by Leonard,
one of the deceased assailants, to transport three males on a return trip from
Alexandra to Senderwood. When he picked them up he realised that he knew
them. After dropping them at 1[ …] W[…] Road, S[…] , he awaited the phone call
of his passengers at a nearby bridge. He described Leonard as someone “like a
4
brother” and shop owner from whom he would buy snacks. Baker, his co-
accused in the court a quo, was also a business owner with whom he had traded.
He also knew Peter, the third passenger and a soccer player, for more than 10
years. The appellant denied seeing or having any knowledge of his passengers
being armed, having balaclavas or that they intended committing any offence. He
further explained his failure to report the incident to the authorities as a fear of
being arrested.
[8] Notably, five telephone calls were made to his co-accused later that night (Exhibit
O) and four months later, after his arrest, he made a pointing out during which an
utterance was made which was construed as an indication that he was aware of
the criminal intent of his companions.
[9] The appellant further admitted that approximately one week before the incident
he had transported the same three individuals to the same area. On that
occasion he waited at the same bridge but was never contacted to collect them,
and he later learned that they had returned to Alexandra without informing him.
[10] His co-accused denied knowing the appellant and denied being in Senderwood
at the time of the incident. The trial court however rejected this version and
accepted the evidence establishing that the appellant and his co- accused were
together on the fateful night, and that the co- accused was one of the intruders
who entered the Lipschitz residence with his two deceased companions.
[11] The trial court correctly found that there was no evidence of a prior agreement
between the appellant and his passengers to commit any offence and relied on
the circumstantial evidence to convict the appellant on the doctrine of common
purpose.
Common Purpose
5
[12] It is trite 1 that the doctrine of common purpose allows criminal liability to be
attributed to individuals who jointly participate in the commission of an offence.
The conduct of any person acting in furtherance of the shared purpose is
imputed to all who are part of that purpose. A common purpose may arise from a
prior agreement, whether express or implied, or from active association and
participation in a shared criminal design. In the case of a consequence ‑based
crime, such as murder, the usual requirement of a causal link between the
accused’s conduct and the death of the deceased is relaxed, provided the
accused actively associated themselves with the actions of the actual
perpetrators.
[13] In S v Safatsa
2 it was stated that for a common purpose to be established the
following is required:
a. The accused must have been present at the scene when the crime was being
committed.
b. He/she must have been aware of the criminal acts to be committed by his
companions.
c. He/she must have had a common cause with those committing the crime.
d. He/she must have manifested his/her sharing of a common purpose by
performing some act of association with the conduct of the others.
e. He/she must have had the requisite mens rea. In murder, the accused
must have intended that the deceased be killed or must have foreseen the
possibility of him/her being killed and performed his own act of association
with recklessness as to whether death was to ensue.
[14] These prerequisites were repeated with approval in S v Mgedezi
3. In addition, the
court should not lose sight of the other definitional requirements for a crime like
the elements of culpa and unlawfulness.
1 Thebus and Another v S 2003 (6) SA 505 (CC).
2 S v Safatsa & others 1988 (1) SA 868 (A).
3 S v Mgedezi and Others 1989 (1) 687 (A).
6
[15] It was submitted that none of the prerequisites applied to the appellant in that:
a. He was not present at the scene where the violence was being committed;
b. There is no evidence that he was aware of the assault;
c. There is no evidence that he intended to make common cause with those
perpetrating the assault;
d. There is no evidence that he manifested his sharing of a common purpose
with the perpetrators by himself performing some act of association with the
conduct of the others; and
e. There is no evidence that he had the requisite mens rea.
[16] In S v Makhubela
4 the Constitutional Court held that although the applicants may
not have intended the resultant murder, they had to have foreseen the possibility
thereof ensuing as the other perpetrators were carrying firearms, which they
must have known would be used if the plan went awry and that they had
nonetheless actively associated themselves with the criminal acts, hence it
followed that their convictions in respect of the murder charge also had to stand:
“…the fact that the first appellant had prior to the robbery made common cause
with his co -robbers to execute the crime, well -knowing that at least two of them
were armed, would set in motion a logical inferential process leading up to a
finding that he did in fact foresee the possibility of a killing during the robbery and
that he was reckless as regards that result.”
5.
[17] Similarly, in S v Nkosi 6, the SCA held that the surviving robber was correctly
convicted of the murder of a fellow robber. In that case, a gang of robbers, armed
with firearms and foreseeing the likelihood of resistance, engaged in a shoot -out
during the commission of the robbery. In the exchange of gunfire, the victim of
the robbery shot and killed one of the robbers. These matters are however
4S v Makhubela & Another 2017 (2) SACR 665 (CC).
5 S v Lungile & another 1999 (2) SACR 597 (SCA) para16.
6 S v Nkosi 2016 (1) SACR 301 (SCA).
7
distinguishable from this appeal in that in the referenced matters the appellant(s)
knew that he and his fellow robbers were armed with loaded firearms which could
result in a shoot-out or that they might encounter ‘dangerous resistance’.
[18] In the current matter there is no evidence to suggest that the appellant was
aware that his passengers carried firearms or that he had known of their criminal
intention. It can therefore not be said that he reasonably foresaw subjectively that
his companions intended to commit housebreaking with the intention to commit
an offence, armed robbery and nor that in the course of encountering dangerous
resistance, firearms might be used with possible fatal consequences.
Circumstantial evidence
[19] The State relied on circumstantial evidence in an attempt to prove that the
appellant had formed a common purpose with the perpetrators and was therefore
guilty of the offences. It is accordingly necessary for the Court to apply the well -
known principles set out in R v Blom
7 to the facts of this case to determine
whether the evidence meets the required standard.
[20] In Blom the court formulated two key principles: (a) The inference must be
consistent with all the proven facts. If any proven fact is inconsistent with the
proposed inference, the inference cannot stand. (b) The proven facts must
exclude every reasonable inference other than the one the State seeks to draw.
If other reasonable inferences can be drawn from the facts, then the court must
have a doubt, and the accused must receive the benefit of that doubt.
[21] On the facts before it, the trial court considered various pieces of evidence and
concluded that the only reasonable inference to be drawn was that the appellant
was a willing participant who was fully aware of what his companions intended to
do after he had dropped them in Senderwood. The appellant however argued
that the inferences were inconsistent with all the proven facts and that the proved
7 R v Blom 1939 AD 188.
8
facts do not exclude every other reasonable inference, one being that in fact the
appellant’s version is reasonably possibly true. The State held the view that the
evidence against the appellant was overwhelming and that his version should
therefore be rejected.
[22] Among other evidence the trial court accepted the evidence of a pointing out and
concomitant utterance by the appellant. The State placed a lot of emphasis on
both the pointing out and the utterance which was accepted as an admission by
the appellant that he was aware that crimes were going to be committed.
Notably, however the appellant pointed out a passage next to 1[…] W[…] Avenue
whereas the incident complained of happened at 1[ …] T[…] Road. That
significantly diminishes the value of the pointing out. It goes without saying that
had the appellant pointed out 1[…] T[… ] Road it would have been significant and
of great value. The pointing out in fact lends credence to the version of the
appellant that he was just the transporter, as he pointed out the place where he
had dropped his passengers and where they entered a passage.
[23] With reference to the utterance during the pointing out on 30 June 2013 which
was recorded as “I dropped off Leonard, Vusi, Modise and Baker where they
came to steal” it must be noted that the actual offences were committed four
months prior to the pointing out. At the outset it must be noted that the pointing
out took place long after the offences, approximately four months later. At that
time, the appellant was fully aware that the offences had been committed, as he
had been informed of the outcome when h is companion returned to the vehicle.
The key question is whether the phrase “where they came to steal” refers to the
appellant’s knowledge before he dropped them off, or whether it reflects
knowledge he acquired after the offences had already been committed and
subsequently conveyed to him.
[24] The phrase is capable of more than one reasonable interpretation. One
[24] The phrase is capable of more than one reasonable interpretation. One
interpretation is that the appellant was informed of the commission of the
offences only upon the return of his co -accused to the vehicle, and that his
9
reference to their coming “to steal” reflects information received thereafter. The
alternative interpretation is that he was aware of their intention to steal before
dropping them off. The appellant consistently maintained during the trial that he
was unaware of their intentions when he transported them. Importantly, he was
never questioned during cross -examination about the precise meaning he
intended to convey with the phrase recorded during the pointing out.
[25] In circumstances where an accused person’s utterance is ambiguous and
susceptible to an interpretation consistent with innocence, the court is obliged to
adopt the interpretation that favours the accused, unless the State has
demonstrated beyond reasonable doubt that the more incriminating interpretation
is the correct one. Given the passage of time between the events and the
pointing out, and given that the appellant had full knowledge at the time of the
pointing out that the offences had indeed been commi tted, it is entirely plausible
that he was referring to knowledge obtained ex post facto. The failure of the
State to clarify, through proper questioning, what the appellant intended by the
phrase deprives the utterance of the unequivocal meaning that the trial court
attributed to it. Against the backdrop of the appellant’s steadfast version that he
had no prior knowledge of the criminal intentions of his companions, and in view
of the ambiguity inherent in the statement, it cannot be said that the State
discharged its burden of proving prior knowledge beyond reasonable doubt.
[26] In the circumstances, the interpretation placed upon the appellant’s statement by
the trial court is not the only reasonable one. The possibility that the appellant’s
words referred to information obtained after the commission of the offence
cannot be excluded. The court therefore finds that the pointing out has limited
value and the utterance has no value and that it cannot be included as a
value and the utterance has no value and that it cannot be included as a
consideration in determining whether the circumstantial evidence in the case is
sufficient to prove the existence of a common purpose between the appellant and
the known perpetrators. The limited value of the pointing out is brought about by
the fact that the address where the offences was committed and the address
pointed out were not the same.
10
[27] The fact that the appellant knew that the others climbed over a fence after
dropping them off at night must have alerted him to the fact that they were up to
mischief and were not there for innocent purposes. Despite that he waited for
them at a nearby bridge and collected Baker after he was called. He was content
with waiting and collecting them as agreed. By waiting for them while knowing
that they jumped a fence to gain access to a property as opposed to using an
entrance/exit he associated himself with the fact that they were up to no good.
There is however insufficient evidence to show that the appellant was aware that
his companions were armed; that they were going to burgle a house to commit
an offence or that they were willing to use firearms to overcome resistance
should there be any.
[28] The fact that the appellant had transported the perpetrators to the same location
approximately a week earlier, that he waited for their return on both occasions,
that he was in telephonic contact with certain perpetrators both before and after
the commission of the offences, and that he subsequently pointed out the scene,
does not justify the inference that he had formed a common purpose with those
who committed the offences. It is suspicious but not the only reasonable
inference that can be drawn from the evidence. The appellant’s version, that he
merely provided a transport service at Leonard’s request, cannot be excluded. In
the circumstances, the State has failed to disprove his explanation beyond
reasonable doubt, and his convictions on all counts cannot be sustained.
[29] The behaviour of the appellant, after the fact deserves scrutiny. It is common
cause that when he picked up his co- accused after the incident, he was informed
that there was a shootout and that the others and the homeowner had died at the
scene. He drove off, returning him to Alexandra, without informing the authorities.
[30] The law of participation deserves consideration and specifically whether the
[30] The law of participation deserves consideration and specifically whether the
appellant made himself guilty as an accessory after the fact. Section 257 of the
Criminal Procedure Act, 51 of 1977 (the CPA) as amended provides that if the
11
prosecution fails to prove the commission of an offence with which an accused is
charged but proves that he was an accessory after the fact he or she may be
convicted as an accessory after the fact. The authors Burchell and Milton in their
work Principles of Criminal Law define an accessory after the fact as “....
someone who unlawfully and intentionally, after the completion of the crime,
associates himself or herself with the commission of the crime by helping the
perpetrator or accomplice to evade justice.” They indicated that the case law
seems to suggest two different approaches to the definition of an accessory after
the fact namely a wide approach which merely requires that the accessory
should have associated himself in a broad sense with the offence committed, and
a narrower approach which requires that the association takes the form of
assisting the perpetrator to evade justice. The authors appear to favour the latter
approach and their definition which is based on that. Preiss AJA described the
two approaches in S v Nkosi and Another
8 and referred to most of the leading
cases on the subject without deciding whether the wider or narrower approach
should be adopted.
[31] In the case of S v Morgan
9 the court of appeal preferred to follow the narrower
approach and followed the above- mentioned definition by Burchell and Milton. In
that case Corbett CJ with reference to R v Jonqani 10 and S v Jonathan en
Andere11 accepted that dolus eventualis as the form of intention, was sufficient to
render the accused criminally responsible as an accessory after the fact, and
stated that: ‘This would mean that if the accused had knowledge of facts which
indicated to him the possibility that a crime had been committed by X, and the
accused proceeded to help X, reckless of what the position was and with the
required object, he would be guilty as an accessory after the fact.’
[32] As a general principle, the mere failure by a member of the public to report the
[32] As a general principle, the mere failure by a member of the public to report the
commission of a crime does not, without more, render that person guilty as an
8 S v Nkosi and Another 1991 (2) SACR 194 (A).
9 S v Morgan and Others (644/1991) [1993] ZASCA 94 (2 June 1993).
10 R v Jonqani 1937 AD 400 at 405.
11 S v Jonathan en Andere 1987 (1) SA 633 (A) at 643 I – J.
12
accessory after the fact. In the present matter, however, the appellant was not an
uninvolved bystander. He knew what had transpired; at the very least, he was
aware that his co- accused were involved in the killing of the deceased and
regardless of that removed him from the scene. Despite this knowledge, he took
no steps to report the matter. Instead, he removed his co- accused from the
scene and remained silent thereafter. Logic dictates that he knew that such
conduct would assist his co- accused in evading justice, thereby facilitating his
escape. There was no evidence before the trial court to suggest that his silence
was motivated by a desire to exculpate himself. In the absence of any such
evidence he is accordingly guilty as an accessory after the fact to the three
counts of murder.
[33] Section 257 of the CPA states that in the absence of any punishment expressly
provided by law an accused who was convicted as an accessory after the fact is
liable to punishment at the discretion of the court provided that it shall not exceed
the punishment which may be imposed in respect of the offence with reference to
which the accused is convicted as an accessory. An accessory after the fact
cannot be punished more harshly than the perpetrator could have been
sentenced. In imposing the sentence, it needs to be considered that the appellant
willingly transported a perpetrator from the immediate vicinity of a crime scene
where he knew serious crimes were committed and subsequently remained silent
about it. The traditional sentencing factors namely the personal circumstances of
the offender, the nature and seriousness of the offence and the interests of
society need to be considered. The purpose is to satisfy the main aims of
punishment which include prevention, retribution for what he has done, his
rehabilitation and deterrence of himself and other potential offenders from
committing similar offences. Having considered the personal circumstances of
committing similar offences. Having considered the personal circumstances of
the appellant as it appears in the trial record, the mitigating as well as the
aggravating factors the court considers a sentence of 10 years imprisonment on
each of the three murder counts to be appropriate in the circumstances.
13
Conclusion
[34] The appellant was incorrectly convicted of the housebreaking with the intent to
commit an offence, attempted armed robbery and the three counts of murder.
The conviction of the appellant on all counts is not sustainable. On counts 1-3 the
court erred by convicting him of murder as opposed to an accessory after the fact
in respect of all three counts. In respect of the housebreaking and attempted
robbery counts there is no evidence that links the appellant to the commission of
the offences and he should have been acquitted on both counts.
Order
[35] In the circumstances, I make the following order:
1. The appeal against the three convictions of murder, housebreaking with
intent to commit an offence, and attempted robbery with aggravating
circumstances is upheld.
2. The order of the court a quo is set aside and replaced with the following:
“The accused is found guilty of murder (as an accessory after the fact) on
each of counts 1 to 3.”
3. The accused is sentenced on the conviction of murder (as an accessory
after the fact), to ten (10) years’ imprisonment on each of counts 1 to 3.
4. In terms of section 280 of the Criminal Procedure Act 51 of 1977, it is
ordered that the sentences on counts 2 and 3 are to run concurrently with
the sentence imposed on count 1.
5. The sentence is antedated to 11 December 2015, being the date of the
original sentence.
6. No order is made contrary to the provisions of section 103(1) of the
Firearms Control Act 60 of 2000; the appellant accordingly remains unfit to
possess a firearm.
7. The immediate release of the appellant is ordered.
14
______________________
I. COX
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
I agree,
_______________________
R. STRYDOM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
I agree,
______________________
M. V. NOKO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard on: 17 November 2025
Delivered on: 26 February 2026
Appearances
15
For the Appellant: Adv. E. Crespi
Instructed by: Legal Aid, Johannesburg
For the Respondent: Adv. V. Sinthumule
Instructed by: The National Prosecuting Authority