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The SCA granted Siyabonga Ngcobo special leave to appeal against his conviction only.
Picture: iStock
A man has won his latest bid to overturn his conviction for attempted murder in the Supreme Court of Appeal (SCA).
This week, the SCA found Siyabonga Ngcobo not guilty and ordered his discharge.
Ngcobo was tried at the Durban Regional Court in KwaZulu-Natal (KZN) for a 2019 shooting incident.
He was convicted in August 2021 and sentenced to five years in prison.
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His immediate appeal on both the conviction and sentence was denied, leading him to petition the KZN High Court, which heard his appeal in October 2022.
The high court only delivered its judgment a year later, dismissing the application entirely.
In January 2024, the SCA granted Ngcobo special leave to appeal against his conviction only.
His case was heard in November.
Attempted murder shooting incident
During the trial a state witness, referred to as Mr Zulu, testified that on 12 September 2019, he was driving his Toyota Hilux in Montclair, KZN, when he noticed a white Golf 7R following him.
After parking near Shoprite, the Golf stopped on the road parallel to the parking area, according to the witness.
Zulu told the court that he recognised Ngcobo in the back seat and rolled his window down, thinking he was being greeted.
Instead, the front passenger window of the Golf opened, and firearms were pointed at him.
He alleged that both Ngcobo and the front passenger fired shots.
Realising he was being targeted, Zulu testified that he ducked to the floor of his vehicle to avoid being shot in the head.
The shooting lasted about a minute before the Golf sped away.
The witness sustained a severe injury to his left hip and chest bruises.
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He further revealed that an unidentified bystander helped him out of the vehicle before emergency services arrived, transporting him to Inkosi Albert Luthuli Central Hospital.
It emerged during the trial that Zulu and Ngcobo had known each other since childhood, growing up together in Umlazi and attending the same schools.
Their friendship, however, ended in 2011 when both were arrested for the murder of a local councillor.
Zulu testified that he last saw Ngcobo at a meeting at Durban’s Riverside Hotel between 2017 and 2018.
After his testimony, the state closed its case.
Ngcobo denied involvement, stating that he was routinely travelling between Umbumbulu, where he was overseeing a construction project, and Yellowwood Park, where he lived, on the day of the shooting.
A statement recorded by Warrant Officer Magutshwa at Zulu’s home in October 2019 was admitted as evidence.
Other evidence included a medical report, a ballistics report, and photographs taken by Warrant Officer Zungu.
The magistrate found Zulu’s testimony corroborated by these photographs.
SCA judgment on attempted murder conviction
On 12 February, Acting SCA Judge Nkosinathi Chili, supported by four other judges, ruled that the lower courts misinterpreted the photographic evidence used to corroborate Zulu’s testimony.
“Mr. Zulu’s uncertainty regarding the position of his motor vehicle is of vital importance. Mr. Zulu contradicted himself in this respect,” Chili stated.
Initially, Zulu testified that his vehicle faced the road, with the Golf stopping directly in front of him. However, under questioning, he later claimed the cars were parked parallel to each other.
“That, in my view, was a material contradiction which the trial court ought to have dealt with in weighing up the evidence,” the judgment reads.
Chili also noted that Zulu ducked for cover during the shooting, making it improbable that he could have clearly identified his assailants.
“It is highly improbable, in these circumstances, that Mr. Zulu would have been able to focus his attention on his assailants rather than focusing on saving his life,” he said.
Ngcobo’s alibi and right to a fair trial
Chili pointed out that there was no evidence contradicting Ngcobo’s alibi apart from Zulu’s testimony.
“On closer examination, his evidence was not corroborated and was not satisfactory in all material respects.
“In the circumstances, the appellant’s alibi stood uncontested. It could not properly be dismissed as being false beyond reasonable doubt. Consequently, the trial court ought to have found that the state had failed to prove its case.”
The judge further highlighted that Ngcobo was only arrested on 4 February 2020, five months after the commission of the offence.
“The state proffered no explanation for such a lengthy delay in bringing the appellant to court.”
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Chili found that the magistrate’s refusal to allow Ngcobo’s attorney to present all three of Zulu’s witness statements was an irregularity.
“In the only statement that the appellant’s attorney handed into evidence, it was established that, contrary to his testimony in court that he was unable to identify the front passenger, Mr Zulu stated that the front passenger was the appellant’s friend.”
Zulu’s prior statements, the judge said, could have clarified inconsistencies in his testimony.
“I am of the view that the decision of the learned magistrate to deny the appellant’s attorney the opportunity to lead evidence of the further statements made by Mr Zulu rendered the appellant’s constitutional rights, in particular the right to adduce and challenge evidence, nugatory.”
The judge also noted that Zulu misled the court by disputing signatures on his statements.
Unprofessional conduct in court
Additionally, Chili criticised the magistrate for her handling of the trial.
“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.”
He pointed out that after Zulu’s testimony, the magistrate questioned whether the state needed to call additional witnesses, leading the prosecutor to prematurely close the state’s case.
Chili also noted an escalating conflict between the magistrate and Ngcobo’s attorney, which ultimately undermined the trial’s integrity.
“It is clear on record that both the learned magistrate and the appellant’s attorney had focused their attention on attacking and defending their respective personalities rather than seeking justice.
“Comments like ‘Oh my goodness… let’s see how far you get… don’t shout at me, I do not stand that nonsense… stop pointing fingers at me… this war between us seems to be interesting, let it go on…’ are a clear indication that the focus had shifted from seeking justice to settling scores.”
The judge found that the hostility led to Ngcobo’s attorney abandoning his efforts to introduce further statements from Zulu, weakening the defence.
Chili concluded that the magistrate’s conduct and the trial’s procedural errors resulted in a “material failure of justice”.
Furthermore, he criticised the high court for upholding the regional court’s flawed approach.
As a result, the SCA upheld Ngcobo’s appeal and overturned his conviction.
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