IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: AR13/2024
In the matter between NHLANHLA HENDRY TSHABALALA APPELLANT
And THE STATE RESPONDENT
JUDGMENT
P C BEZUIDENHOUT J :
[1] Appellant was convicted in the Regional Court, Newcastle on 3 counts of
attempted murder which were taken together for purposes of sentence and sentenced to 10 (ten) years imprisonment. He now appeals against the convictions and sentence
with leave of the court a quo. There was firstly an application for condonation of the late
filing of Appellants heads of argument which was not opposed and condonation was granted.
[2] The complainant in count 1 was Mr. Zondi, in count 2 Ms Myeni and in count 3
Mr. Buthelezi.
[3] The J88 in respect of Hercules Bonginkosi Zondi in respect of count 1 was
admitted as exhibit “A” . The J88 of Dumisani Buthelezi in respect of count 3 was
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admitted as exhibit “B”. A photograph album was admitted as exhibit “C” and a ballistic
report by warrant officer Thula Mcane was admitted as exhibit “D”. Appellant at the
commencement of the hearing elected not to disclose any defence.
[4] Mr. Zondi testified that on the day in question he was in his vehicle together with
his wife, Ms. Myeni , and Mr. Buthelezi. It was in the afternoon at about 18h30 and was
getting dark. He was the driver of the vehicle. While travelling to Arbor Park in
Newcastle , he came across a Gol f motor vehicle that was stationery of which the front
doors were open. He stopped and saw Appellant standing talking to a female on the
right hand side. As his vehicles window was not functional he opened his door to speak
as he could not drive pas t and asked to pass. Appellant told him that he must drive into
his motor vehicle so that he can pass. There was then a discussion between him and
Appellant and another man came and assisted them in driving pas t this vehicle.
[5] He then continued driving for some distance. As he was driving he saw lights of a
motor vehicle approaching from behind which was speeding and when it came close he recognised it as the vehicle which they had passed which had been stationery. When
this vehicle came parallel to his vehicle he heard the sound of a firearm being
discharged and this vehicle was at that stage not travelling at high speed. After the
shots were fired the Golf motor vehicle drove on and stopped ahead of them . He and Mr
Buthelezi were injured. They then decided to turn around and return in the other
direction. When they arrived at his home they took another vehicle and both he and Mr.
Buthelezi were taken to hospital as they had each sustained a gunshot wound to their
left legs . Ms Myen i was not injured.
[6] He was shocked and scared at the time when the shots were fired and could not
say who was firing the shots. After he was treated at the hospital he proceeded to the
police station to open a case. He pointed out certain place s to the police and
photographs were taken. The bullet holes on his vehicle are visible in the photographs.
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[7] Some days later he was informed by his wife that there were people outside the
house. They then entered and he called various people to come there so that they could
hear what was being said. He also phoned Dumisani Buthelezi to come and hear.
Amongst th ose people he recognised the one who was present on the day and had told
them to drive around the vehicle. He identified himself as Bongani Khumalo. He also
phoned warrant officer Meyer from the South African Police Services to attend. Bongani
stated that he came to apologise on behalf of Appellant. He stated that it was his brother
Appellant who fired the shots while he was seated in the passenger seat.
[8] Ms M yeza also came to his home and indicated that Appellant was her boyfriend
and apologised that they were shot.
[9] Ms Myen i confirmed that she was in the vehicle with Mr. Zondi and Mr. Buthelezi
when they came across a stationery vehicle and that an altercation developed about the
car parked in the road, and that they later pas sed this vehicle. She confirmed that a
motor vehicle with lights on bright came from behind at high speed but slowed down
when it was behind them and then drove parallel to their vehicle. Bullets were then fired
and she stated that they came from the direction of this other vehicle. The left front
window of this other vehicle was open. She estimated 4 or 5 gunshots were fired. The
vehicle stopped ahead of them and they then turned around and proceeded back home.
Her husband and Mr. Buthelezi were then taken to the hospital. She was not injured.
She confirmed that the lady Mthan e Myeza also referred to as Zanele Skhakhane, who
was with Appellant on the day, came to their home to apologise.
[10] Mr. Dumisani Buthelezi confirmed that he was in the vehicle at the time in
question and he was seated behind the driver. He confirmed the incident of the Gol f
motor vehicle that was parked with its front doors open and that they thereafter pas sed
this vehicle after another person intervened and continued driving. They were driving
slowly as it was a dirt road. Whilst still driving he heard a noise and then felt that he had
been shot. At this stage the Gol f was driving pas t them. They then returned to the home
of Mr. Zondi and thereafter he and Mr. Zondi proceeded to different hospitals for
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assistance. Some time later Mr. Zondi phoned him to come to his home where one
Bongani and others were. Bongani stated that he came to apologise. He testified that
this Golf was driving fast then applied brakes when next to their vehicle and then sped
off.
[11] One Zanele Sikhakhane testified that she is also known as Mathane Myeza and
that she was the lady who was talking to Appellant at the time that the vehicle was
parked with its front doors open. She stated that an argument broke out between
Appellant and Mr. Zondi and that Appellant’s brother apologised and allowed the vehicle
to pass. She after about 20 minutes departed and went home.
[12] One Cornelius Johannes Daniel Meyer, a warrant officer in the South African
Police Services, testified he was present when the brother of Appellant came to the
home of Mr. Zondi to apologise for what had transpired and that he had made notes in his pocket book. For reasons which will become clear later I will not deal with his
evidence in this regard any further.
[13] From the J88’s it is apparent that Mr. Zondi sustained an injury to his left knee
and Mr. Buthelezi to the left lower leg. From the photographs it is also apparent that
bullet holes are visible on the right hand side of Mr. Zondi’s vehicle.
[14] Appellant testified and confirmed that he had parked next to the road and the
other vehicle passed his vehicle. The driver of the other vehicle then said to him why do
you youngsters park your vehicles in a manner that you have parked your vehicle. He
then later drove off and while driving with the intention of passing the vehicle of Mr.
Zondi he heard a shot being fired. He then got frightened. The shot was coming from
the white Avanza. He accelerated and saw that Bongani was looking for something
underneath his seat. Just before he could pass the white Avanza he heard another shot
that came from his motor vehicle and that it was Bongani who fired those shots. He
asked him why he was firing and he said that it was warning shots. He stated that it was
about 4 or 5 shots that were fired by Bongani.
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[15] He drove off, went to Bl aauwbosch to drop off Bongani and then continued with
his journey to B alfour where he stayed. It was only later when he received a phone call
from his girlfriend that he heard that two people had been injured. He did not have his
firearm with him on the day as he left it in his safe. He was contacted by a detective
Meyer at a later stage. He was then informed that a case of attempted murder had been
opened against him. He was unaware of the meeting which Bongani had with the
complainants. He denied that he drove slower and parallel to Mr. Zondi’s vehicle. When
he approached from behind the driver’s door of this vehicle was slightly open. He was
driving slowly and increased speed when he heard the gunshot coming from the Toyota.
He was close to the Toyota at that stage. He was able to see the door of the driver
being slightly open but was not parallel to the Toyota.
[16] Bongani said that he would go and look for the people and apologise to them.
However after he dropped Bongani off he drove to B alfour as they had agreed that
since it is late he will go to B alfour. He stated that he did not go and report the incident
as Bongani was supposed to go and do so because he was the one who had fired the
shots. He told Bongani to report the matter to the police. There was no damage to his
vehicle. That was the case for the defence
[17] The learned magistrate in his judgment summarised the evidence that was
presented. He found that the state witnesses were credible and that there was not much
that was in dispute. He found that the evidence indicated that not one of the
complainants saw who fired the shot s but however it became apparent from the
evidence that the vehicle of Appellant had slowed down when the shots were fired and
was next to the complainants ’ vehicle when these shots were fired. Also that it was
common cause that there had been an earlier confrontation between the parties and
that a number of shot s were fired. Appellant continued on to B alfour where he stayed
and did not go and report the matter to the police. He only heard of the injuries to the
people when he was phoned by the police.
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[18] The learned magistrate found that the version of Appellant was improbable and
that the evidence that the first complainant drove with his door slightly open was to
accommodate the evidence that his window was broken and to try and justify how shots
could have been fired from the said vehicle. Bongani fired warning shot s but despite the
fact that they were shot at Appellant did not go and report this matter to the police or
open a case of attempted murder. He told Bongani to go and open a case which he
stated was because Bongani fired the shots. Further the evidence that the victim of the
shooting going to apologise to his assailants was highly improbable.
[19] He found that there was no direct evidence as to who the person was who fired
the shots. He found that the evidence of Bongani that went to the home and made an
apology on behalf of his brother as well as that of warrant officer Meyer was
inadmissible hearsay evidence. As I set out earlier it is therefore not necessary to deal
with the evidence as the learned magistrate was correct in this regard and this was also
not challenged. The question which had to be answered wa s whether it was Bongani or
Appellant who fired the shot s from their vehicle. If it was Bongani then Appellant knew
that the shots were going to be fired and that is why he came next to the vehicle of the complainants and also why he slowed down. The learned magistrate referred to the
decisions of Safatsa and Others 1988 (1) SA 868 A and S v Mgedezi 1981 (1) SA 687 A
and Criminal Law by Snyman at page 250 and found Appellant knew that the shots
were going to be fired at the vehicle of the complainants and that he provided the
opportunity to do so. He must therefore have foreseen the possibility that a person
could die from such actions.
[20] During the application for leave to appeal the learned magistrate held that an
important aspect in the matter was whether it can be inferred and accepted from the
conduct of appellant that he was an accomplice in the commission of the offence. He
stated that it was for that reason with regard to conviction that he will grant him leave to appeal. He held that he could not find that another court would come to a different
conclusion on the credibility of the witnesses.
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[21] It is common cause that there was an altercation between the Mr. Zondi and
Appellant when they approached Appellant’s vehicle where it was parked with open
doors. Thereafter it is also common cause that Appellant drove pas t the complainant’s
vehicle and that shots were fired. Ms Myen i and Mr. Buthelezi testified that they heard at
least 4 or 5 shots. This was confirmed by Appellant who also testified he heard 4 or 5
shots being fired. This also appears from the bullet holes to the vehicles. Nobody could
identify who fired the shots but the complainants were adamant that the shots that were
fired came from the vehicle of Appellant, which Appellant later admitted by stating that it
was Bongani who fired the shots. The bullet holes are all on the right hand side of Mr.
Zondi’s vehicle. It is therefore not in dispute that the shots were fired from Appellant’s
vehicle at the vehicle of Mr. Zondi .
[22] Appellant’s contention that a shot was fired at them from the complainanat’s
vehicle was correctly rejected by the learned magistrate. There was nothing in the
evidence that supports this contention. The question therefore is if it is not possible to
identify who exactly fired the shots whether there was a common purpose to act and fire
the said shots. Having correctly rejected the version of Appellant it must be considered
whether there was a common purpose or whether it was that of an accomplice. It was
submitted by Mr. Roets that any inference to be drawn from the evidence must be the
only inference that can be drawn in the circumstances. He based the most of his
argument on the finding by the learned magistrate that Appellant was complicit and
therefore an accomplice. The learned magistrate however also found that the
prerequisites of common purpose was probably present.
[23] In S v Safatsa and Other 1988 (1) SA 868 (A) at 898 B it was held:
“It is well established that a common purpose need not be derived from an
interceded agreement, but can arise on the spur of the moment and can be
inferred from the facts surrounding the active association with the furtherance of
the common design.”
It continued at 899 E:
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“Association in a common illegal purpose constitutes the participation of the
actus r eus. It is not necessary to show that each party did a specific act towards
the attainment of the joint object. Association in the common design makes the
act of the principal offender the act of all.”
And at 899 F:
“Moreover, it is not necessary to show that there was a causal link between the
conduct of each party to the common purpose and the unlawful consequence”
[24] In S v M gedezi and Others 1989 (1) SA 687 AD it was held that there are certain
prerequisites that need to be satisfied for common purpose. Firstly he /she must have
been present at the scene where the crime was committed, secondly he/she must have
been aware of the assault of the victims, thirdly he/she must have intended to make
common cause with those who are actually perpetrating the assault, fourthly he/she
must have manifested his /her sharing of common purpose with the perpetrators of the
assault by himself /herself performing some act or association of the conduct of the
others and fifthly the requisite mens r eus. He/she must have intended them to be killed
or must have foreseen the possibility of their being killed and performed his /her own act
of association recklessness as to whether or not death was to ensue.
[25] In the present matter considering the facts of the case it is clear that Appellant
was present, he was aware of what was happening because he stated that Bongani
was firing the shots . He did not try to stop him or reprimand him . Thirdly he made
common cause with Bongani because the evidence was clear that he drove next to the
vehicle and slowed down next to the vehicle of the complainants when the shots were
fired which indicates that he intended to make common cause with it and also must
have then foreseen that those five shots being fired at the vehicle that there was indeed the possibility of someone being killed and therefore he acted recklessly as to the
consequences thereof.
[26] The learned magistrate in his judgment stated that the requirements for common
purpose would probably be present but because he referred to a quotation from
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Snyman held that the requirements for complicity are present as the accused kne w the
shots were going to be fired at the vehicle and he presented the opportunity to do so.
These factors that he has mentioned are all factors which are to be applied in common
purpose.
[27] Having considered the evidence of Appellant, especially that after all these shots
had been fired, being a traffic officer, he did not report the matter, made no attempt to report the matter but merely went to Balfour is all in my view indicative of the fact that he
associated himself fully with the conduct of Bongani if he was the one that fired. It is
accordingly immaterial whether i t was him or Bongani who fired as their conduct both
contributed and accordingly in terms of the doctrine of common purpose he is just as
guilty as whoever fired the shots if it was not him. Appellant accordingly had a common
purpose with Bongani as it is not necessary to show that each party did a specific act.
Appellant is therefore guilty on all three counts.
[28] The appeal against the conviction must accordingly fail.
[29] Appellant was employed as a traffic officer. He was a licenced examiner who also
owned taxis, married with four children and was a first offender. The learned magistrate
took into account the seriousness of the offence that two of the people were in actual
fact struck by the bullets, that there were four to five bullets that were fired and that it
was fortunate that nobody was killed. The learned magistrate found that the shooting
was unnecessary , that the epidemic of violence was something which cannot be
tolerated. He also found that society’s legitimate demand that members of the public be
entitled to drive on the roads without the risk of being murdered by other erred drivers
must be considered. The correctional officer found that he was a suitable candidate for
correctional supervision but the learned magistrate found that it was not a suitable
sentence in the circumstances and found that imprisonment was necessary . He referred
to S v Eadie 2002 (3) SA 719 (SCA) and termed it “road rage”. He took the 3 counts of
attempted murder as one and sentenced Appellant to ten (10) years imprisonment.
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[30] It was submitted that the learned magistrate overemphasized the incident at the
expense of Appellant’s personal circumstances and erred by classing it as “road rage”.
He also did not set out why he found correctional supervision was not suitable. The
learned magistrate had set out the seriousness of the offence and the safety on the
roads and thus provided reasons why correctional supervision would not be suitable.
[31] On 5 August 2022 the amendment to Act 105 of 1997 came into effect which
amended the Act that attempted murder other than those referred to in Part I but under
Part II of Schedule 2 of the Act prescribed a minimum sentence of fifteen (15) years
imprisonment. This case was heard on 13 September 2022 and no mention was made
of the minimum sentence.
[32] Considering all the facts the learned magistrate in my view did not err in his
reasoning nor was there any misdirection by him. The sentence also does not induce a
sense of shock. It is unfortunately necessary that it must be brought to mind to citizens
of this county that one cannot , merely because of an altercation or a disagreement,
especially on the roads, go to the extent of shooting at other people. The roads should
be safe for everyone to travel on and it is actually more worrying that Appellant as a
traffic official associated himself with such conduct and by losing his temper as well and not reporting the matter to the police. The appeal against sentence must accordingly
also fail.
The following order is made:
The appeal against the convictions and sentence is dismissed .
P C BEZUIDENHOUT J.
I agree.
SIBIYA J.
JUDGMENT RESERVED: 23 MAY 2025
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JUDGMENT HANDED DOWN: 20 JUNE 2025
COUNSEL FOR APPELLANT: F ROETS
Instructed by: Du Plessis Jordaan Inc.
Heidenberg
Gauteng
Tel: 016 349 6001
Cell:087 096 0226/7 or 082 098 5594 or 082 881
9005
Ref: P J De Kock (T30/DEK008)
Email: ag@dkvh.co.za
COUNSEL FOR RESPONDENT: M CHAMANE
Instructed by: DPP Pietermaritzburg
Ref: C Kander