After a lengthy legal battle, a KwaZulu-Natal man who was charged with attempted murder after his former friend was nearly killed in a hail of bullets has been freed from prison by the Supreme Court of Appeal.

Siyabonga Ngcobo was acquitted of charges stemming from a shooting incident that occurred in September 2019 near a Shoprite store in Montclair. He was convicted by the Durban Regional Court in August 2021 and sentenced to five years for shooting a man identified only as Mr Zulu.

Zulu and Ngcobo were childhood friends who grew up together in Umlazi township. They attended the same primary school and later progressed to the same high school. They were described as long-time friends until 2011, when both were arrested for the alleged murder of a local councillor. Each reportedly implicated the other, which led to the breakdown of their friendship.

The Shooting Incident

During the trial, Zulu testified that on the day of the incident, he was driving his Toyota Hilux double cab when he noticed a white Golf 7R following him. As he entered a traffic circle, he lost sight of the vehicle and proceeded to Shoprite, where he parked.

Zulu said the Golf reappeared and stopped on the road running parallel to the Shoprite parking area, directly in front of his car. A person in the back seat rolled down the window, and Zulu said he recognised Ngcobo. Believing he wanted to greet him, Zulu rolled down his own window. Moments later, he saw firearms pointed in his direction, and Ngcobo and his friend—who was driving—opened fire.

Zulu said the shooting lasted nearly a minute while he crouched in his car to avoid being shot in the head. After the assailants fled, an Indian man who had witnessed the attack helped him out of the vehicle, and he was rushed to hospital.

The Appeal and Court Findings

Ngcobo’s legal team challenged the reliability of Zulu’s identification, arguing that inconsistencies in his testimony were substantial enough to warrant a re-evaluation. Zulu reportedly gave conflicting answers about the positioning of the vehicles during both examination-in-chief and cross-examination.

Meanwhile, Ngcobo denied any involvement in the shooting. He said that on the day of the incident, he was travelling between Yellowwood Park, where he lived, and Umbumbulu, where he was overseeing a construction project. He confirmed that his friendship with Zulu ended in 2011 after their arrests, and he last saw him between 2017 and 2018 during a meeting in Durban, though they did not speak.

Acting Judge Nkosinathi Emmanuel Chili noted that Ngcobo was convicted solely on Zulu’s evidence. While Section 208 of the Criminal Procedure Act allows a court to convict an accused person based on the testimony of a single witness, that witness must be credible and provide satisfactory evidence that can be corroborated.

The court found that Zulu’s testimony contradicted the photographic evidence from the crime scene.

"Zulu contradicted himself... He had clearly stated in evidence-in-chief that his motor vehicle was facing the road and added, more importantly, that the Golf suddenly emerged and ‘came to a standstill directly in front of his motor vehicle.’ However, when the public prosecutor sought clarity at a later stage, he changed his version and stated that the motor vehicles were parked parallel to each other," said the judge.

Judge Chili also criticised the state’s failure to properly investigate Ngcobo’s alibi, which suggested he was elsewhere at the time of the incident.

"Ngcobo'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."

Judicial Irregularities and Acquittal

The judge further ruled that the magistrate overseeing the trial had committed several irregularities that rendered the proceedings unfair to Ngcobo.

It was noted that when the prosecution attempted to call additional witnesses after Zulu’s testimony, the magistrate intervened and questioned whether it was necessary. Following an exchange, the prosecutor relented and closed the state’s case without calling any further witnesses.

"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," the judge said.

Additionally, the judge noted a heated exchange between the magistrate and Ngcobo’s attorney, in which they reportedly made personal attacks against each other. The magistrate was quoted as saying:

"Oh my goodness... let’s see how far you get... Don’t shout at me, I do not stand that nonsense... I’ve been in this court for more than 30 years; I cannot allow you to shout at me... Stop pointing fingers at me... This war between us seems to be interesting, let it go on."

Judge Chili said it was clear that the focus had shifted from seeking justice to settling personal scores.

Consequently, the judge set aside Ngcobo’s conviction and ordered his immediate release from prison.

sinenhlanhla.masilela@iol.co.za

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