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After she listened to 51-year-old father Sibusiso Tshabalala describing how he had accidentally shot and killed his son on Tuesday night, Magistrate Maggie van der Merwe could only show compassion and mercy by releasing him on warning.
A distraught Tshabalala was joined by his wife in the dock and broke down in tears before proceedings began. He is facing a charge of murder.
At a hearing in the Lenasia Magistrate’s Court, Van der Merwe explained Tshabalala’s rights and asked if he understood.
“This is the first and painful mistake,” he responded.
Tshabalala handed himself over to the police following the incident.
In an affidavit presented to the court, he said he fell asleep in his car outside the Fred Norman High School in Ennerdale in Johannesburg, where his son was having extra lessons that night.
He was woken up by a loud noise and tampering with the car, which was when he thought he was being hijacked.
He drew his firearm and shot, only to hear his son, Luyanda, screaming: “Daddy, it’s me.”
He said it was dark outside and he wasn’t able to see it was his son.
“I wish to be released on bail so I can bury my son in dignity. This incident will haunt me for the rest of my life,” Tshabalala said in his affidavit.
Van der Merwe said: “The facts of the case are common cause between the state and the defence… the applicant has convinced me he is eligible for bail.
“I can only describe this incident as a tragedy and judging by the applicant’s display of emotions, it’s an incident that will impact them for the rest of their lives. The applicant has handed himself over to the police and cooperated with the police.”
She said the director of public prosecutions (DPP) would decide whether the matter should proceed or not.
“The state has indicated that this was not a pre-mediated murder, hence it is a schedule five offence,” Van der Merwe said.
Defence lawyer Chwewe Machaka read Tshabalala’s affidavit, which stated that he was a security guard employed by the South African Police Service in Krugersdorp for the past five years, earning R10 000 per month, and that he had three dependents still in school.
He said his wife was unemployed and depended on him.
State prosecutor Tumi Maunye said according to investigating officer Bruce Chauke, Tshabalala had no previous convictions and there was no reason to believe that he would not attend proceedings.
Gauteng MEC of education Panyaza Lesufi was also present in court.
“We are satisfied with what we witnessed in court and we continue to support the pupils at the school. We have offered to support the family because this incident was shocking,” GDE spokesperson Steve Mabona said.
The matter was postponed to July 24.