The Supreme Court of Appeal has acquitted and released a man who was accused of attempting to kill his former childhood friend.
This came after the man was wrongfully convicted by the trial court, and the high court incorrectly upheld his conviction.
Siyabonga Ngcobo was prosecuted in court after his friend “Zulu” testified that on September 12, 2019, he had been driving his car, a Toyota Hilux double cab, to the Shoprite store in Montclair, KwaZulu-Natal.
He told the court that he was alone in the motor vehicle and along the way, he noticed that he was being followed by a white Golf 7R. Zulu said when he joined the traffic circle near Shoprite, he momentarily lost sight of the Golf.
Identified his shooter as Ngcobo
However, at the traffic circle, he turned towards Shoprite and halted his motor vehicle at the parking area. And the Golf emerged and stopped on the road that runs parallel to the Shoprite parking area.
Zulu said a person seated in the back of the Golf rolled the left back window down and opened fire, hitting the window of his vehicle. He identified that person who shot him as Ngcobo.
Giving testimony in court, Zulu said he realised that his assailant was aiming for his head and he took cover. He ducked to the floor of the vehicle to avoid being shot in the head.
The shooting continued for about a minute and when it stopped, the Golf drove off.
He told the court that he had sustained a serious injury to his left hip, bruises to his chest and was unable to move.
“An Indian man, whose motor vehicle had also been shot, came to my rescue and dragged me out of the motor vehicle. Shortly thereafter, an ambulance and the police arrived at the scene. And he was subsequently conveyed to Inkosi Albert Luthuli Central Hospital,” he said.
Former childhood friends
It was revealed in court that the duo knew each other very well, as they grew up together in Umlazi. They attended the same primary school and subsequently progressed to the same high school.
The two were long-time friends until 2011 when they were both arrested on allegations of the murder of a local councillor. They confirmed that their friendship ended in 2011 when they were both arrested.
It seems that Zulu and Ngcobo blamed each other, which caused them to part ways.
But the Supreme Court of Appeal’s acting judge, Nkosinathi Chilli, said in arguments it was submitted that the magistrate, who had previously heard the matter, violated Ngcobo’s right to a fair trial by denying his attorney the opportunity to present two further statements made by Zulu to the police during the investigation.
Testified against his former friend
“Zulu had testified that he had told the police at the scene on the day of the incident that he was shot by Ngcobo. He also gave evidence that he subsequently deposed to an affidavit on 19 October 2019 in which he identified Ngcobo as his assailant. Ngcobo was only arrested on February 4, 2020, five months after the commission of the offence. The state proffered no explanation for such a lengthy delay in bringing Ngcobo to court,” said Chili.
In a scathing judgement, Chili said the manner in which the magistrate conducted the trial is to be frowned upon.
“The learned magistrate committed several irregularities, the cumulative effect of which rendered the trial of Ngcobo unfair.
“She descended into the arena at a critical stage of the trial, where she should have allowed the public prosecutor the opportunity to prove the state’s case.
Court intervened at crucial stage
“When the public prosecutor sought to call further witnesses after the testimony of Mr Zulu, the court intervened and enquired whether it was necessary for the state to lead further evidence.
“After an exchange with the learned magistrate in which the appellant’s attorney was also involved, the public prosecutor eventually relented and closed the state’s case without calling any further witness.
“During the exchange, the appellant’s attorney made comments which could potentially have changed the dynamics of the case had the court not intervened. It is apposite to refer to the exchange that followed after the public prosecutor stated that one of the witnesses she sought to call was the arresting officer,” said Chili
Victim’s testimony not corroborated
Chili raised concern that the victim’s testimony was not corroborated.
“With the exception of the arresting officer, whose evidence, according to the appellant’s attorney, could potentially have bolstered the appellant’s case, there is no indication, on record, as to who the other witnesses would have been and what evidence they would have presented to court.
“But had the trial court exercised some patience, it would have allowed itself the opportunity to consider the evidence of the other witnesses rather than relying solely on the uncorroborated evidence of Mr Zulu, a decision that turned out to be detrimental to the state’s case,” he said.
He also raised concern that the trial deprived both the state and the defence the opportunity to present evidence relevant to their respective cases.
“On the one hand, the state could have presented some corroboratory evidence. And on the other hand, the defence could have explored the arresting officer’s evidence it considered to be prejudicial to the state’s case. An impression that the learned magistrate had pre-decided that Mr Zulu’s testimony was sufficient to prove the state’s case is inescapable,” he said.
