IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A225/2025
1. REPORTABLE: ~ / NO
2. OF INTEREST TO OTHER JUDGES: ¥ES/NO
3. REVISED: ¥€SINO
S FEBRUARY 2026
DATE
In the matter between:
SYDNEY HENRY MATHEBULA
and
THE STATE
Appellant
Respondent
The matter was heard in open court. The judgme nt is handed down electronically by
circulation to the parties' legal representatives via email and uploading to the electronic
file of this matter on Caselines. The date of the judgment and order is deemed to be 5
February 2026.
JUDGMENT
MAZIBUKO J (LEDWABA AJP AND KUBUSHI J CONCURRING)
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[1] Sydney Henry Mathebula ('the appellant') was accused number 3, and together
with Jacob Ntate Boye, accused number 1 and Ndumiso Kgomo, accused
number 2, were arraigned before the Delmas Circuit Court, Gauteng Division
('the trial court') with the following counts:
[1.1] Robbery with aggravating circumstances,
[1.2] Murder read with section 51 (1) and part 1 of schedule 2 of the Criminal
Law Amendment Act 105 of 1997,
[1.3] Unlawful possession of a firearm and
[1.4] Unlawful possession of ammunition.
[2] They were duly informed of the implications of section 51 (1) provisions of the
Criminal Law Amendment Act 105 of 1997 in relation to the offences they were
facing. They were legally represented during the trial.
[3) They pleaded not guilty to all charges and exercised their right to remain silent.
[4] Accused number 2 was acquitted on all charges.
[5] Accused number 1 and the appellant were convicted on all counts, and the
following sentence was imposed:
[5.1] 15 years for the count of robbery with aggravating circumstances,
[5.2] Life imprisonment for the count of murder and
[5.3] 5 years imprisonment for the counts of unlawful possession of a firearm
and of ammunition, which were taken together for the purpose of sentence.
[6] Following the appellant's unsuccessful leave to appeal application against
conviction and sentence in the trial court, the Supreme Court of Appeal granted
leave to appeal only on counts 3 and 4, unlawful possession of a firearm and
ammunition. This court will therefore only focus on the appellant's appeal in
respect of counts 3 and 4.
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[7] Given that the appeal is limited to counts 3 and 4, despite incomplete
transcription of some evidence, particularly that of Mr Steve Nkuna, the parties
agree that the record remains sufficient for purposes of adjudicating the appeal.
The Supreme Court of Appeal in S v Chabedi, 1 held in paragraph 5 thereof that
" ... the requirement is that the record must be adequate for proper consideration of the
appeal; not that it must be a perfect recordal of everything that was said at the trial".
And at paragraph 7 stated the following:
"The question whether defects in a record are so serious that a proper consideration
of the appeal is not possible , cannot be answered in the abstract. It depends, inter alia,
on the nature of the defects in the particular record and on the nature of the issues to
be decided on appeal.
This court will therefore proceed to adjudicate the appeal, although the
transcribed record is incomplete.
[8] The State initially opposed the appeal; however, in its heads of argument, it has
since conceded that it could not prove the appellant's guilt beyond reasonable
doubt on counts 3 and 4.
[9] The issue before the trial court was whether the State had proven beyond
reasonable doubt that the appellant was in joint possession of a firearm and
ammunition with his co-accused, accused number 1.
[1 O] The trial court was satisfied that the appellant had, on his own version , admitted
that he was present at the time of the robbery and shooting incident. In its
judgment, 2 the trial court stated that:
'The only reasonable inference is that the two assailants who assisted accused no 1
who admits having shot the deceased knew that he was armed and consequently that
intention of possessing the firearm is imputed to accused 3.'
[11) The appellant's ground of appeal is that the trial court misdirected itself by
imputing intention to possess the firearm and ammunit ion on him, when it drew
1 S v Chabedi (497/04) (2005] ZASCA 5; 2005 (1) SACR 415 (SCA) (3 March 2005) paras 5 and 7.
1 S v Chabedi (497/04) (2005] ZASCA 5; 2005 (1) SACR 415 (SCA) (3 March 2005) paras 5 and 7.
2 Record: Volume 8 page 706 line 10-16.
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the inference that accused number 1 's co-perpetrators must have known that
he had a firearm and ammunition.
[12] The issue for determination in this appeal is whether the trial court correctly
applied the principles of joint possession in convicting the appellant on
possession of the firearm and ammunition.
[13] In securing the conviction for unlawful possession of a firearm and ammunition,
the State relied on the admission made by accused number 1 that he was in
possession of the firearm when he shot the deceased. Further, the appellant
also admitted in his statement that he saw accused number 1 with the firearm,
and the shot went off whilst accused number 1 and the deceased wrestled over
the firearm, which shot later led to the death of the deceased.
[14] Despite the trial court's admission of their statements into evidence, during their
testimony, accused number 1 and the appellant denied any participation in the
commission of the crime.
(15) It is trite that the court of appeal will only interfere with the trial court's factual
findings where the trial court has materially misdirected itself on facts.
[16] In order to succeed on appeal, the appellant must persuade this court, on
adequate grounds , that the trial court misdirected itself in accepting the State's
evidence and rejecting his version as not being reasonably possibly true. There
are established principles governing the hearing of appeals against findings of
fact. In the absence of demonstrable and material misdirection by the trial court,
its findings of fact are presumed to be correct. They will only be disregarded if
the recorded evidence shows them to be clearly wrong.3
[17] In order to determine whether the State had adduced factual evidence from
which the court can draw a proper inference that a co-perpetrator was liable for
the joint possession of the firearm and or ammunition, there are two crucial
questions to be answered. The first question is whether the co-perpetrators had
questions to be answered. The first question is whether the co-perpetrators had
the intention to exercise possession of the firearm and or ammunition through
the accused, who had the actual physical possession. The second one is
3 S v Monyan e and Others 2008(1) SACR 543 (SCA) at para 15.
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whether the accused, who had the actual physical possession , had the intention
to hold the firearm and or ammunition on behalf of his co-perpetrators. Only if
both questions are answered in the affirmative, the court would draw proper
inference that there existed common possession between the group and the
actual possessor of the firearm and or ammunition, or that there was joint
possession involving the whole group and the one who was in actual
possession.
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[18] In S v Mbuli, 5 the SCA stated that where the offence is 'possession' of a firearm
(or in that case a hand grenade), it is not the principles of common purpose that
have application, but rather those relating to joint possession . A conviction of
joint possession can only be competent if more than one person possesses the
firearm. Mere knowledge by the others that one member of the group was in
possession of a hand grenade, or even acquiescence to its use in the execution
of their common purpose to commit a crime, was not sufficient to make them
joint possessors thereof.
[19] In the matter of Kwanda v State6, the Supreme Court of Appeal held that the
fact that an accused conspired with their co-accused to commit robbery, and
was even aware that some of their co-accused possessed firearms for the
purpose of committing the robbery, does not lead to the inference that the
accused possessed such firearms jointly with their co-accused. The
Constitutional Court in S v Makhubela and Another7 confirmed that awareness
alone is insufficient to establish the intention to possess a firearm jointly or to
hold a firearm on behalf of another.
[20] The mere fact that an accused participated in a robbery where his co
perpetrators possessed firearms will not prove beyond reasonable doubt that
the accused, who during the robbery had actual physical possession,
possessed the firearms jointly with the other co-perpetrators. 8
4 S v Nkosi 1998 (1) SACR 284 (W) at 286H - I.
5 (422/2001) [2002) ZASCA 78;2003(1) SACR 97(SCA)(7 June 2002), para 72.
5 (422/2001) [2002) ZASCA 78;2003(1) SACR 97(SCA)(7 June 2002), para 72.
6 (592/10) [2011] ZASCA 50 (30 March 2011) at para 5.
7 2017 (2) SACR 665 (CC), para 55.
8 S v Leshilo 2020 JDR 1882 (SCA), para 11.
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[21] It is beyond dispute that accused number 1, the appellant and the other person
conspired to commit robbery and carried it out. The co-perpetrators of accused
number 1 knew about the firearm in his possession. However, the State did not
adduce evidence to prove the guilt of the appellant beyond reasonable doubt
concerning joint possession. I could not find that the appellant was at any time
in possession of the firearm and or ammunition.
[22] In my respectful view, the trial court erred when it imputed the intention to
possess a firearm on any or all of accused number 1 's co-perpetrators. There
was no evidence that the appellant, as a co-perpetrator of accused number 1,
intended to exercise possession of the firearm and ammunition through
accused number 1, who had the actual physical possession of the firearm and
ammunition.
[23] There was also no evidence adduced in the trial court that accused number 1,
who had the actual physical possession, had the intention to hold the firearm
and ammunition on behalf of his co-perpetrator, the appellant. Since these
requirements were not met, the trial court was incorrect in drawing the inference
that, because the appellant knew about the firearm and ammunition in the
possession of accused number 1, the intention to possess them was to be
imputed to the appellant.
[24] There was no factual evidence adduced by the State to prove the guilt of the
appellant beyond reasonable doubt with regard to joint possession. In my
respectful view, the Appeal Court is entitled to interfere with the trial court's
decision that there was joint possession, in that the trial court misdirected itself
when it imputed the intention to possess a firearm and ammunition on any of
accused number 1's co-perpetrators. Accordingly, the appeal against conviction
on counts 3 and 4 should succeed.
[25] As a result, I propose the following order.
Order:
[25.1] The appeal against conviction and sentence on counts 3 and 4 is upheld.
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I agree, and it is so ordered.
N
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
ACTING JUDGE PRESIDENT OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Date of hearing:
Judgment delivered:
Appearances:
For the appellant:
Attorneys for the appellant:
For the respondent:
5 February 2026
5 February 2026
Adv F Van As
Legal Aid South Africa
Adv K Germishuis Khosa
National Director of Prosecutions
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