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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: AA03/2023
HIGH COURT CASE NO:CC29/2018
In the matter between:
JOSHUA NKGAPELE 1ST APPELLANT
MUSA JAMES TEMBE 2ND APPELLANT
and
THE STATE RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
…………………….
…………………….
DATE: 25/05/2026
SIGNATURE…………………
Delivered: 25 May 2026
This judgment was handed down electronically by circulation to the parties’ legal
representatives by e-mail. The date and time for hand down of the judgment is
deemed to be 25 May 2026 at 16:00.
Date heard: 28 November 2026
Coram: Ngobeni J et al. Bresler AJ,Maphelela AJ
JUDGMENT
MAPHELELA AJ
[1] The appeal before court relates to the judgment and the sentencing of the
appellants and other convicted persons on the 02 nd May 2019 and 03 rd
May 2019 respectively. The matter came before court on the 28 th
November 2025 for an appeal after the Supreme Court of Appeal (SCA)
granted the appellants leave to appeal before this court on 14 October
2022. It is not necessary for this court to deal with the reasons given
during condonation application which was then granted.
[2] The leave to appeal was granted by the Supreme Court of Appeal to be
heard by a full Court of this Division. The Appellants are appealing against
the conviction s and the sentence s granted by Judge G . Muller (court a
quo). The appeal comes from the judgment of the court a quo where five
(5) accused were charged and later found guilty and sentenced as it
appeared clearly from the judgment. From the five accused only two filed
for leave to appeal and the matter proceeded only in respect of the two
appellants being the first and second appellants.
[3] In this judgment, the appellants’ application will be addressed separately,
only to the extent that it is not possible same will be indicated. In terms
of the judgment of the court a quo , the appellants ( the accused) and
other convicted persons were arrested and detained and subsequently
sentenced for a number of offenses they were charged with resulting from
the commission of crimes. In this judgment I will only deal with charges
relevant to the appellants before court.
[4] As a result, both the first and the second appellants were sentenced as
follows by the court a quo after having been found guilty:
4.1 Count 1: 15 years imprisonment
4.2 Count 2: Life Imprisonment
4.3 Count 5: 5 years imprisonment
4.4 Count 8: 3 years imprisonment
4.5 Count 9: 6 Months imprisonment
[5] The appellants brought an application to appeal both the convictions and
the sentences against them by the Honourable Judge Muller in the court a
quo.Both appellants had provided different reasons for their applications
which will be dealt with in detail hereunder.
[6] During the trial in the court a quo the first appellant decided to exercise
his constitutional right to remain silent and closed his case without giving
any evidence. What was clear through the entire process was that, the
deceased person before passing had written a statement which indicated
that he was shot by 5 people who were the occupants of a sedan motor
vehicle. The vehicle was later identified as the vehicle in which both the
first and second appellants were passengers. It is also common cause
that the deceased’s firearm as well as one other unlicensed firearm were
found inside the vehicle (in which the appellants were passengers) and
was also identified to have been used in the commission of the crime
when the deceased was fatally wounded and later died in hospital.
[7] The police officers who chased and caught up with the Mercedes Benz
vehicle (In which both appellants were passengers) also found what is
called a jamming device inside the car. They then switched it off and
immediately thereafter they were able to communicate with other
members of the South African Police Service (SAPS) on the radio. That is
when they realized that, the devise they just switched off was a jamming
device which was found inside the vehicle in which the appellants were
passengers. To put it clear, the devise was used by the appellants and
others to prevent the police from communicating with others during the
chase.
[8] It is therefore correct as indicated by the first appellant that the court
relied on circumstantial evidence and this is purely on the basis t hat the
deceased who could have testified as the witness was no more. However,
it must be indicated that by relying on circumstantial evidence the court
is not prevented from giving the correct verdict at the end of the hearing.
What is very important and came about during the trial was further that,
when the police officers searched the appellants, they discovered a pair of
gloves in the possession of accused 3 (Oupa Aubrey Malapile) accused 5
(Musa James Tembe). Accused number 2 (Tebele Joshua Nkgapele) w as
found to have been in possession of the balaclava. In any event parties
have agreed and accepted the statement made by the deceased as
forming part of the evidence or witnesses.
[9] It is of utmost importance to note in respect of the first appellant that in
the judgment of the court a quo, the court indicated that the evidence
against him is not disputed and the court did not deal with such in detail,
and on that basis, I must indicate that the evidence against all the
accused persons including the first appellant was very much
overwhelming and I find no reason why the first appellant chose to
remain silent when all the evidence was implicating him.
[10] One other very important aspect is that when the accused, including the
appellants, were arrested by the police, none of them did disclose the fact
that they only asked for a lift from the occupants and or driver of the
vehicle (Mercedes Benz). There was no evidence before the court a quo
that any of the passengers in the vehicle was not travelling with other
occupants. It does not make any sense that someone who has asked for
a lift decided to remain silent to the extent of spending some time in jail
without disclosing such to the law enforcement. It is not clear and what
the purpose would have been for someone who was simply given a lift in
a vehicle and when the police stop the vehicle which is alleged/suspected
to have committed a crime and the unlawful weapons found in the
vehicle, decided at the scene of the incident not to disclose his status in
the vehicle at the time of arrest.
[11] It is very important to note that in as far as a person has the right to
remain silent and to the extent of not giving evidence on charges brought
against them, they do so at their own risk more so, if there is already
evidence linking them to the crime committed. The right to remain silent
does not prevent and or bar the court from proceeding with leading
evidence of other witnesses to prove a case against a silent party. It is up
to a party who chose to remain silent to properly follow the hearing and
make an informed decision whether to continue maintaining the right to
remain silent and get proper legal advice.
[12] From the vehicle in which the appellants and other convicted and
sentenced were passengers, the police found two firearms as well as
other materials like pair of gloves which were suspected to have been
used in the commission of crimes, and balaclavas. The other firearm
belonged to the deceased and was taken from him during the day and the
other was found to have been unlicensed, a jamming device was also
found in the car and none of the accused denied the knowledge of all the
material at the time of arrest. This statement put all the accused persons
at the scene of crime and the knowledge of the shooting and murder
unless if there was any evidence to the contrary, which is not the
position.
[13] Both appellants denied the knowledge and possession of the firearms
found in their vehicle and any involvement in criminal act ivities which
included the killing of the deceased. I have earlier indicated that at the
time of the arrest, none of the parties have raised any issue with the
police indicating that they requested a lift and or the reason why they
were found in the car suspected of having committed a crime. One of the
firearms found in the vehicle belonged to the deceased which he was
dispossessed earlier that day by five occupants in a Mercedes Benz
vehicle which is linked to the same vehicle the appellants were found in.
The appellants and other accused persons were charged with unlawful
joint possession of firearms and later found guilty of murder and unlawful
possession of firearm.
[14] The appellants submitted the following as common cause in their heads of
argument:
14.1 That the deceased in connection with count one (1) and two (2)
were on the 12th December 2016 at around 10h00 in the morning,
was shot and robbed of his firearm, a 9mm Parabellum Caliber
Norinco Model 213 Semi-Automatic Pistol with serial number 4[...];
14.2 That the deceased informed the police that the people who robbed
and shot at him were driving in a black Mercedes Benz sedan and
they were 5 occupants;
14.3 That the deceased died the following day on the 17 th December
2013 and the cause of death being gunshot wound through the
lower abdomen and also lacerated femoral vessels internal bleeding
shock and death;
14.4 Through the legal representative the hearsay evidence of what the
deceased told Mr Risabi and the photo album of the scene was not
objected to by the two appellants;
14.5 That the same day of the 12 th December 2019 after 13h00 the six
occupants of a black Mercedes Benz were arrested by the Police
which included the two appellants;
14.6 None of the two appellants’ version was put to the witness Mr
Risiba;
14.7 That the 6 th person arrested pleaded guilty to possession of
firearms and possession of ammunition in connection with what was
found inside the black Mercedes Benz upon arrest of the six
occupants.
[15] Despite the parties agreeing on paragraph 14.7 above, it is very
important to note that during the appeal, parties cannot reach an
agreement by what is not in the record of appeal. In other words, if the
issue was not dealt with during the trial in the court a quo, it is not for
this court to consider despite the agreement between the parties. Even if
for a minute one must accept the concession as indicated, I see no reason
why this court should consider that as a reason to discharge the
applicants. The deceased made it very clear that there were five (5)
people in the vehicle.
[16] As stated in the case of S v Boesak 2001(1) SA 912 (CC) where the court
made it very clear that “ silence in the face of a prima facie case leads to
conclusive evidence that the accused has committed the offence ”. There
is no doubt that the evidence before this court put the first appellant at
the scene of crime and being an active participant thereof. I therefore
find no compelling reasons why the judgement in the court a quo should
be overturned on this basis.
[17] The appellant's counsel has set -out the principle to follow for conviction
on possession in the case of S v Makhubela 2017(2)SACR 665 (CC)46
where the Constitutional Court confirms the approach by the Supreme
Court of Appeal where the following is stated,: “ In convicting the
applicants for unlawful possession of firearms and ammunition on the
basis of the doctrine of common purpose, the trial court departed from
the settled jurisprudence. The test for establishing liability for the
possession of firearms and ammunition was established in S v Nkosi 1998
(1) SACR 248 (W). “
[18] In S v Mbuli (422/2001) [2002] ZASCA 78;2003(1)SACR 97(SCA) (7 June
2002) at paragraph [71] where the following was indicated by the
Court,[71] “What is prohibited by both those sections is the existence of a
state of affairs (I.e. having possession of an armament, or a firearm, as
the case may be) and a conviction will be competent only if that state of
affairs is shown to exist. That state of affairs will exist simultaneously in
respect of more than one person if they have common (or joint)
possession of the offending article. Their contravention of the relevant
section in those circumstances does not arise from an application of the
principles applicable to common purpose (which is concerned with liability
for joint activity) but rather from an application or ordinary principles
relating to joint possession. Common purpose, and joint possession, both
require that the parties concerned share common state of mind but the
nature of that state of mind will differ in each case. Perhaps Olivier JA had
in mind the principles of joint possession, rather than the doctrine of
common purpose, when he said in S v Khambule 2001 (1) SARC 501
(SCA) at par 10 that ‘ there is no reason in principle why common
intention to possess firearms jointly could not be established by
inference, but I do not agree with the further suggestion that a mere
intention on the part of the group to use weapon for the benefit of all of
them will suffice for a conviction. In my respectful view Marais J set out
the correct position (apart from a misplaced reference to common
purpose) when he said the following in S v Nkosi 1998 (1)SACR 248 (W)
at 286 h-I:
[19] “The issues whic h arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference to the
answer to the question whether the state has established facts from
which it can properly be inferred by a court that:
(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 detentor, or common
purpose between the members of the group to possess all the guns.
[20] There is no doubt that the court a quo did not mislead itself in accepting
this evidence and finding that the appellants were acting in common
purpose with all the other persons who have already been found guilty
and sentenced. The appellants in their own admissions, conceded and
agreed that the court should accept the evidence of the deceased through
Mr Risiba. There is no evidence before court which suggested otherwise.
[21] In this case I am of the view that the court a quo did not mislead itself in
finding the appellants guilty of the crimes and sentenced as such. The
evidence before court pointed out to the fact that the appellants together
with other occupants of the vehicle were involved in the commission of
crimes which a lso included murder. In my view there are no compelling
circumstances which this court is bound to look at in order to set the
judgement and the sentencing of the court a quo aside.
[22] The second appellant’s counsel emphasized the fact that because there
are no records of the proceedings of the court a quo the second appellant
will be prejudiced and gave a number of case law why he believes that
the second appellant must be released. Note must be taken that not the
entire transcripts of the trial are missing, the only missing part of the
records relates to when the second appellant was giving evidence.
[23] The Constitutional court in the matter of S v Schoombee and Another v S
(CCT154) [2016] ZACC 50,2017(2) SACR 1 (CC) (15 December 2016)
stated the following, “ it is long established in our criminal jurisprudence
that an accused’s right to a fair trial encompasses the right to appeal. An
adequate record of trial court proceedings is a key component of this
right. When a record is inadequate for a proper consideration of an
appeal, it will, as a rule, lead to the conviction and sentence being set
aside”.
[24] What is very important point raised in this case is, it was pointed out that
the records must be amply adequate for just consideration of the issues
the applicants raised on appeal. In the current case, the court is able to
deal with the appeal despite the missing part of the records, and the
second appellant is not able to narrate as to why he will be prejudiced by
the missing records. It cannot be a general statement that the missing
records justify the release of the appellant, otherwise this will surely
result in the miscarriage of justice.
[25] In State v Chabedi [2005] ZASCA 5, 2005 (!) SACR 415 (SCA) the court
said the following with regard to the incomplete record:
“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…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
issue to be decided on appeal”.
[26] The flaw of incorrect records might not be fata l. The premise is whether
an appeal can be adjudicated fairly. In Phakane v S (CCT61/16) [2017]
ZACC 44; 2018(4) BCLR 438 (CC) (5 December 2017) the test was
reiterated in that:
[20] “An issue that arose in the appeal was whether, in the absence of
the missing evidence, the full court could determine the appeal fairly.
If it could not do so, this would mean that the applicant’s right to a
fair appeal entrenched in section 35(3) of the Constitution had been
infringed. Section 35(3) reads that, “Every accused person has a right
to fair trial, which include the right of appeal to, or review by a higher
court”
[27] The court in this case went further and stated that, [47] “ Our sad duty in
this case is to Vacate Mr Phakane’s conviction of Murdering Ms.
Boshomane, his girlfriend, on the ground that the trial court record, the
full Court which heard his appeal and dismissed it, was materially
incomplete and that the constitutional right to a fair appeal was thus
violatedi”.
[28] The honourable court continued to indicate that, “ The failure of the state
to furnish adequate record of the trial proceedings or a record that
reflects Ms. Manamela’s full evidence before the trial court, in
circumstances in which the missing evidence cannot be reconstructed,
has the effect of rendering the applicant’s right to a fair appeal nugatory
or illusory. Even before the advent of our constitutional democracy, the
law was that, in such a case, the conviction and sentence or the entire
trial proceedings had to be set aside.”
[29] Reference is also made to the case of S v Mthembu 2012(1)SACR 517
(SCA) at paragraph [17], where Ponnan JA and Petse AJA (writing for the
court) with due reference to two earlier SCA decisions which is S v Legoa
2003 (1) SACR 13 (SCA); and Sv Ndlovu 2003(1)SACR 331 (SCA) stated
that:
“a fair enquiry does not occur in vacuo, but… is first and foremost a fact-
based enquiry”. The effect of an incomplete record on appeal, which
applies equally to reviews, which impacts such fact-based enquiry, was
aptly stated in S v Chabedi 2005 (1) SACR 415 (SCA) on paragraph 5
that:
“On appeal, the record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole basis of the rehearing
by the court of appeal. If the record is inadequate for a proper
consideration of the appeal, it will, as a rule, lead to the conviction and
sentence being set aside. However, the requirement is that the record
must be adequate for proper consideration of the appeal, not that it must
be perfect recordal of everything that was said at the trial. As has been
pointed out in previous cases, records of the proceedings are often still
kept by hand, in which event a verbatim record is impossible…”
[30] What becomes very clear from the reading of the judgement dealing with
this issue is that non -availability of the records does not entitle the
setting aside of the conviction and sentence. Each court must assess the
facts before it, that is whether it is impossible for the court to deal with
the appeal without the records and or part of the record. Should the court
have enough evidence before it, it will not make any sense to release the
appellant without properly assessing the application before it with the
available records and or evidence before it at the time. It is therefore
clear that, it is not only about the availability of the records, but whether,
the court is in a position to be able to reconstruct evidence and or work
on the available part of evidence to reach a fair verdict and or judgement
in the case.
[31] The obligation to conduct a reconstruction does not fall entirely on the
court. The convicted accused shares the duty together with the state.
When a trial record is inadequate, both the state and the appellant have a
duty to try and reconstruct the record. While the trial court is to furnish a
copy of the record, the appellant or his/her legal representative carries
the final responsibility to ensure that the appeal record is in order and
available. At the same time, a reviewing court is obliged to en sure that
the accused is guaranteed the right to a fair trial, including the adequate
record on appeal, particularly where an irregularity is apparent. The loss
of trial records is a widespread problem. It raises serious concerns about
the endemic violations of the right to appeal. Reconstruction should not
be the norm in providing the appellant with their trial records. But when
reconstruction is necessary, the obligations lie not only on the appellant,
but indeed primarily on the court to ensure that the process complies with
the right to a fair trial. It is an obligation that must be undertaken
scrupulously in the interests of criminal accused as well as their victims.
[32] One cannot emphasize enough why it is extremely important that the
parties seeking an appeal must have done all that which is necessary to
making sure that all the records are there for purposes of the appeal. It
must never be used as a play point in that if the records are not found, a
party will be free to go home . I must not be heard as suggesting that
convicted persons are guilty more so when an appeal is underway. I must
agree with the decision of the Constitutional court (Phakane supra) that
there must be an obligation from both sides to try and find the records
and or to reconstruct them. In the current case I am not too convinced
that both the parties and in consultation with the court has done enough
to find these records. There is no explanation why the large part of the
records is available but sections dealing with the second appellant’s
testimony. It is only fortunate that the court in this instance is capable of
dealing with the appeal on the available records.
[33] All the available evidence regarding what had happened at the time of the
commission of the crime is available. The appellant did not give any
different ground in respect of an appeal which is not on record
considering the type of crime he was found guilty of and the fact that he
acted in common purpose during the commission of the crime with
others.
[34] Under the circumstances I find no reason for setting aside the convictions
and sentences on the basis that the records relating to the second
appellant’s testimony during the trial proceedings are not complete. This
court was, be that as it may, able to assess the appellant’s application for
appeal in line with the provided records and case law and on that basis
and based on the available evidence, the court is of the view that the
appellants failed to make a case for the appeal to succeed.
[35] This Court is sitting as a court of appeal. The first appellant decided not to
give any evidence during the trial proceedings and cannot try to give such
during the appeal process. There are no compelling reasons for this court
to grant an order as prayed for by the first appellant. Under the
circumstances I am of the view that the application for appeal in respect
of the first appellant stand to be dismissed.
[36] Under the circumstances both the first and the second appellants failed to
show the court that the court a quo has misdirected itself when giving
judgement during the trial proceedings. There are no compelling reasons
or submissions made to this court to justify this court to interfere with the
judgement of the court a quo. On that basis I am of the view that the
appellants' application should fail.
[37] In the result, the court makes the following order:
37.1 The appeal is dismissed in respect of both the first and second
appellants.
.
T.C MAPHELELA
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION: POLOKWANE
I agree, and it so ordered
______________________________
J.T NGOBENI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION: POLOKWANE
I agree
____________________________
M. BRESLER
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION: POLOKWANE
APPEARANCES
FOR THE APPELANTS : ADV R. SCOTT
INSTRUCTED BY : LEGAL AID SOUTH AFRICA, POLOKWANE
FOR THE RESPONDENT : ADV L.L. MASHIANE
INSTRUCTED BY : DIRECTOR OF PUBLIC PROSECUTIONS, POLOKWANE