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2026
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[2026] ZAGPJHC 206
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Thulani v S (A19/2024) [2026] ZAGPJHC 206 (3 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
A19/2024
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In
the matter between:
TSHABALALA,
THULANI
Appellant
AND
THE
STATE
Respondent
JUDGMENT
MIA J:
INTRODUCTION
[1]
The appellant
appeared in the Regional Court Lenasia, as accused 1 and his
co-accused as accused 2. A third accused appeared separately
after a
separation of trials wherein he concluded a plea and sentence
agreement with the State and was sentenced to ten (10) years
imprisonment. Accused 1 and 2 were arraigned on two charges of
robbery with aggravating circumstances as intended in terms of
section 1 of Act 51 of 1977 of the Criminal Procedure Act (the CPA)
and a charge each of
unlawful
possession of a firearm and unlawful possession of ammunition, in
contravention of sections 3 and 4(f)(iv) and s
90, read with
other sections of the Firearms Control Act, 60 of 2000 (the FCA), as
well as s 250 of the CPA.
The
accused were acquitted on the fifth charge of reckless and negligent
driving. The court a quo granted leave to appeal against
counts
related to possession of an unlicensed firearm and unlicensed
ammunition, accepting that the sentence would be amended in
the event
of a successful appeal. The appeal is opposed.
BACKGROUND
[2]
The allegations against the
appellant were that, accompanied by accused 2 and the third accused,
they robbed the complainant of
his Nissan Navara, motor vehicle and
two cellphones. The three accused drove off in the vehicle, with
third accused, who appeared
in separate trial proceedings, driving
the vehicle. They failed to stop at a roadblock, causing the police
to pursue them in a
police vehicle. The Nissan Navara then drove into
oncoming traffic and collided with two vehicles, a Toyota and a Polo.
The Nissan
Navara overturned after colliding with the two vehicles.
[3]
The complainant, accompanied
by his friend, followed the Nissan. At the police roadblock, they
informed the traffic officers about
the robbery. The traffic officer
confirmed that the Nissan had passed through the roadblock without
stopping and was being pursued
by their officers. The complainant
continued in the direction that the Navara was travelling and came
upon the accident where his
vehicle had collided with two vehicles
and overturned. The three persons in the vehicle were already in the
back of the police
van. The complainant identified the accused and
enquired from accused 2 where his cellphone is. He was informed that
it was in
the laptop bag in the overturned vehicle. He retrieved it
from the bag.
[4]
When the matter came before
the court a quo accused 1 and 2 appeared separately from accused 3 as
he had entered a plea bargain
with the state and was convicted and
sentenced to ten (10) years imprisonment.
The
appeal
[5]
The appellant appeals
against the convictions of possession of a firearm and possession of
ammunition. On his version, he and his
co-accused were selling
t-shirts when they met the third accused, who was driving a Nissan
Navara. The third accused offered them
a lift. While driving, they
became aware of a Mazda following them. The third accused did not
stop at the roadblock as he did not
have his driver's licence.
[6]
The appellant confirmed that
the Nissan Navara collided with two vehicles, as indicated above.
Where the accused are extracted from
the vehicle which was the
subject of the robbery and given the time frame, it appears
inevitable that they were linked to the activity
preceding the
collision. It is improbable that the driver who had recently taken
the vehicle at gunpoint would delay in his escape
by stopping along
the roadside to give a lift to his friends. The complainant’s
version that they were in close pursuit of
the vehicle and had it in
sight for most of the time further discounts the version of a delay
to pick up the first and second accused.
[7]
The accused’s version
was in essence a denial of the allegations except for failing to stop
at the roadblock and colliding
with two vehicles before the Nissan
overturned. The accused, however, agreed with the state’s
version regarding the roadblock
and the collision. Their version was
rejected by the court a quo and found to be not reasonably possibly
true.
DISCUSSION
[8]
The
issue for determination is the possession of the firearm and
ammunition. The test in respect of joint possession by more than
one
detentor is crystallised by the Supreme Court of appeal referring to
the decision in
S
v Nkosi
[1]
,
that.
[9]
Whether all the accused had
possession of the firearm and ammunition is answered by whether the
State proved from which the court
could infer:
a)
“
The group had the
intention(animus) to exercise possession of the guns through the
actual detentor and
b)
The actual detentor had the intention to hold the guns on
behalf of the group.
Only if both
requirements are fulfilled can there be joint possession involving
the group as a whole and the detentors, or common
purpose between
members of the group to possess all the guns
”
[2]
[10]
Counsel for the appellant
relied on the above test and argued that the appellant was not in
possession of the firearm and ammunition.
This it was argued
was because the appellant was not found in possession of the firearm.
The firearm was removed from the
vehicle after the appellants and his
co-accused were removed from the vehicle. Moreover, he
continued, the identification
of the appellant was unreliable. Thus,
the State had not met its case to sustain a conviction of unlawful
possession of the firearm
and ammunition.
[11]
He argued further that the
witnesses colluded in the matter and fabricated evidence.
[12]
The court a quo considered
the deviations in the testimony of the Metro police officer and the
South African Police Services officer.
Much was made about the chain
of custody of evidence by the court
a
quo
.
The court a quo accepted the evidence of the complainant that he
recognised the appellant because he held the firearm and this
was
confirmed by Mr Graham Clark, his friend who was present at the
scene. What was not in dispute was that the three accused
were
pulled from the vehicle. The appellant agrees with that part of the
evidence.
[13]
What is determinative of the
conviction in respect of possession of the firearm is the evidence of
the complainant and Mr Clark
that the appellant wielded the firearm.
Not only did the complainant and Mr Clark recall the appellant and
his co-accused. They
had the opportunity to confirm their identity at
the collision.
[14]
The test for possession in a
group where the firearm was not found in possession of one person,
requires the State to prove that
the group had the intention to
exercise possession of the firearm and ammunition through the actual
detentor, and that the
actual detentor had the intention to
hold the firearm loaded with ammunition on behalf of the group. In
the present matter,
the complainant identified the appellant as the
person who held the firearm. There was no evidence
contradicting this version
other than that the firearm was not found
in possession of the accused. The evidence of the complainant and Mr
Clark gives clarity
to the question who held the firearm. Since the
appeal before this court relates only to the appellant who was
positively identified
as the person who held the firearm, the
recovery of the firearm from the vehicle only affirms the
complainant’s version that
a firearm Which only the appellant
was seen wielding and was the only firearm recovered from the Navara
vehicle, was in the possession
of the appellant. Even if I am wrong
in this analysis, he was on possession by virtue of the Nkosi
doctrine as set out above.
[15]
It is sufficient that the
appellant was identified as the detentor and convicted of possessing
the firearm and ammunition.
[16]
Whilst the court a quo
focussed extensively on the chain evidence, the evidence is clear
that the appellant had possession of the
firearm. The conviction of
possessing the firearm and ammunition cannot be faulted based on the
evidence of the complainant and
Mr Clark. Even though the appellant
denied the incident relating to the robbery, the complainant’s
evidence regarding the
incidents was clear, consistent and
satisfactory and corroborated by Mr Clark.
[17]
Having
considered all the elements, it is apparent that the court a quo
correctly convicted the appellant. The approach suggested
in
S
v Chabalala
[3]
is that:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of the inherent strengths and
weaknesses, probabilities and improbabilities on both sides
and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt
about the
accused’s guilt
.”
CONCLUSION
[18]
Considering the above
approach, the State’s evidence met the appropriate onus. The
complainant and the corroborating witness,
Mr. Clark’s evidence
regarding the identity of the detentor of the firearm, is beyond
reproach. The appellant’s version
that he was given a lift
along the way is improbable, given the Nissan was rushing from the
scene at high speed. There could
not reasonably have been an
opportunity to stop and pick up passengers. This version was
correctly rejected As not reasonable possibly
true.
[19]
Regarding
the sentence, this is pre-eminently a matter of
the trial court's discretion. The SCA indicated in
S
v Salzwedel and Others
[4]
,
that
an appeal court can only interfere with the trial court's sentence if
it misdirected itself or the sentence was shockingly
inappropriate.
[20]
The Court a quo distinguished between the minimum sentence applicable
for possession of an unlicensed firearm which incurs a penalty
of 15
years imprisonment and a prohibited firearm where the serial number
was erased which incurs a penalty of 25 years imprisonment.
The
possession of ammunition incurs a penalty of 15 years imprisonment.
Whilst the views expressed when the sentence was
handed down
travelled a convoluted route, the court considered the circumstances
of the appellant. The court a quo was alive to
the minimum sentence,
and the possible deviation in the presence of substantial and
compelling circumstances, which the court did
not find were present.
[21]
Where the court ordered the fifteen years on count 1 to run
concurrently with the sentence on count 2, given the time and space
of the offences and absence of substantial and compelling
circumstances, there is no misdirection. The sentence of five (5)
years
imprisonment on count 4 was ordered to run concurrently with
the sentence on count 3 during the handing down of passing the
sentence.
Having regard to the circumstances of the offences,
the use of the firearm, that the vehicle was damaged extensively and
the impact on the complainants, I cannot find that the sentence was
shockingly inappropriate or that there was a misdirection.
ORDER
[22]
Consequently, I make the following order:
1.
The appeal against sentence is dismissed.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree
G MALINDI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On
behalf of the appellant:
Instructed by:
Adv
PJC Kriel
BDK
Attorneys
On behalf of the
respondent:
Instructed by:
Adv LR Surendra
National
Prosecuting Authority
Date of hearing:
Date
of judgment:
1 August 2024
3
March 2026
[1]
S
v Nkosi
1998
(1) SACR 284
(W)
at 286 h-i.
[2]
S
v Mbuli
(422/2001)
[2002] ZASCA 78
;
2003 (1) SACR 97
(SCA) (7 June 2002,)see
also
S
v Nkosi
1998
(1) SACR 284
(W)
at 286 h-i.
[3]
S
v Chabalala
2003(1)
SACR 134 (SCA)
[4]
1999(2)
SACR (SCA) at 586a- 588b