A convicted attempted murderer has been acquitted in the Supreme Court of Appeal (SCA), after the judge found the court proceedings to have been a failure of justice where the presiding magistrate’s open-mindedness had been “compromised”.
Siyanbonga Ngcobo was convicted and sentenced in the KwaZulu-Natal Regional Court where he was sentenced to five years behind bars for a charge related to a shooting incident that took place on 12 September 2019, in the vicinity of Shoprite at Montclair, KwaZulu-Natal.
After his conviction, Ngcobo appealed to both the trial court and the high court against his conviction and sentencing which was refused by both forums. During January last year, the SCA granted him special leave to appeal against his conviction.
SCA acting judge Nkosinathi Chili acquitted Ngcobo after he found the trial court misdirected itself after it erroneously found corroboration from a single witness and erred in rejecting Ngcobo's alibi defence. Chili said Ngcobo was wrongly convicted by the trial court and that his conviction was erroneously confirmed by the high court.
Before acquitting Ngcobo, Chili described his case as a miscarriage of justice.
According to court documents, Ngcobo was identified by his alleged shooting victim - a lifelong friend of Ngcobo’s - who had been travelling in a Toyota double cab bakkie when he noticed that he was being followed by a Golf 7 and after pulling into a parking lot, a person seated in the back of the Golf rolled the left, back window down.
The shooting victim identified that person as the appellant.
“For a moment, (the shooting victim) thought that the appellant wanted to greet him, and so he rolled his window down. At that moment, the front window of the left passenger door of the Golf was opened, and the next thing (he) saw were firearms pointed in his direction. Both the appellant and the front passenger fired shots at him. When the shots hit the window (presumably the driver’s side window) of his vehicle, he realised that his assailants were aiming for his head. He took cover, ducking to the floor of the vehicle to avoid being shot in the head.
“It was common cause at the trial that Ngcobo and (the shooting victim) knew each other very well. They grew up together at Umlazi, attended the same primary school and subsequently progressed to the same high school. They were long-time friends until 2011 when they were both arrested on allegations of the murder of a local councillor,” court documents detailed.
Chili found that the shooting victim’s uncertainty regarding the position of his car while he was being shot at, was of vital importance and said it contradicted the sole witness account adding that the State failed to prove its case beyond reasonable doubt.
Further to this, tempers of Ngcobo’s attorney and the magistrate “flared to the extent that they were no longer in control of their emotions. Were it not for their emotions, the attorney would not have abandoned the appellant’s defence in the manner he did”.
According to the record, there was a misunderstanding between the magistrate and Ngcobo's lawyer, which appeared to have been “clouded by a fiery temperament that prevailed in court”.
Chili said: “The manner in which the learned magistrate conducted the trial is to be frowned upon. The learned magistrate committed several irregularities, the cumulative effect of which rendered the trial of the appellant 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.
“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.”