Siyabonga Ngcobo, convicted in August 2021 for his alleged role in a shooting on 12 September 2019 near a Shoprite store in Montclair, is a free man.
He had previously faced a sentence of five years’ imprisonment. In a process described as fraught with judicial misdirection and insufficient scrutiny of the evidence, the Supreme Court of Appeal critically examined how a single witness's testimony fuelled a conviction.
Central to Ngcobo’s appeal was the reliance on the identification evidence provided by the victim, identified only as Mr Zulu in the judgment, who testified that he had recognised his long-time friend as one of the shooters during the daylight attack. However, Ngcobo's legal team argued that the trial court had failed to exercise the necessary caution in relying solely on Zulu’s identification, which was marred by inconsistencies and contradictions.
Zulu testified that he had been travelling in his motor vehicle, a Toyota Hilux double cab, proceeding to the Shoprite store at Montclair. He was alone in the motor vehicle. Along the way, he noticed that he was being followed by a white Golf 7R. When he joined the traffic circle near Shoprite, he momentarily lost sight of the Golf. At the traffic circle, he turned towards Shoprite and parked his motor vehicle at the parking area.
Shortly thereafter the Golf emerged and stopped on the road that runs parallel to the Shoprite parking area, directly in front of his car. A person seated in the back of the Golf rolled the left, back window down. Zulu identified that person as Ngcobo. For a moment, Zulu thought that Ngcobo 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 Zulu saw were firearms pointed in his direction. Both Ngcobo 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.
The shooting continued for about a minute and when it subsided, the Golf drove off. At that moment, Zulu realised that he had sustained a serious injury to his left hip and bruises to his chest. He was unable to move. A man, whose motor vehicle had also been shot, came to his rescue and dragged him 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.
However, the court’s scrutiny revealed that the trial court had incorrectly interpreted photographic evidence meant to corroborate Zulu's testimony. Key errors in the evidence evaluation led to the conclusion that Zulu’s identification could not be deemed reliable. The appellate judges drew attention to the fact that critical details, such as the angles and positions of the vehicles involved, were not adequately substantiated in the evidence presented.
Further compounding these issues was the rejection of Ngcobo's alibi. The court voiced concerns over how the trial magistrate examined this defence, observing that it was subjected to scrutiny that did not match the totality of evidence available in the case. Ngcobo maintained he had been travelling between workplaces during the time of the incident, with no substantial evidence to contradict his presence elsewhere.
In a pivotal aspect of its judgment, the appeal court concluded that the trial court's refusal to allow testimonies from additional witnesses further undermined Ngcobo's right to a fair trial. There was a consensus that not only did the initial trial court err in its judgement, but the higher court also failed to adequately regard fundamental judicial protocols, which should protect the accused's rights.
#Conviction
