THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 115/2024
In the matter between:
SIYABONGA NGCOBO APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Ngcobo v The State (115/2024) [202 5] ZASCA 12 (12 February 2025 )
Coram: MABINDLA -BOQWANA, WEINER and KEIGHTLEY JJA, and CHILI and
MOLITSOANE AJJA
Heard : 6 November 2024
Delivered : This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website and
released to SAFLII. The date and time for hand -down of the judgment is deemed to be
11h00 on 12 February 2025.
Summary: Criminal law – conviction – whether the trial court failed to exercise caution
when considering the evidence of a single witness – whether the trial court wrongly
evaluated and rejected the appellant’s alibi – whether the appellant’s right to a fair trial
was violated .
2
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : KwaZulu -Natal Division of the High Court, Pietermaritzburg (Mlaba and
Henriques JJ, sitting as court of appeal):
1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘1 The appeal is upheld.
2 The order of the Regional Court, Durban is set aside and replaced with the
following:
“The accused is found not guilty and is discharged .”.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Chili AJA ( Mabindla -Boqwana , Weiner , Keightley JJA and Molitsoane AJA
concurring):
Introduction
[1] On 26 July 2021 , the appellant appeared before the Regional Court sitting in
Durban (the trial court) on a charge of attempted murder. The charge related to a shooting
incident that took place on 12 September 2019, in the vicinity of Shoprite at Montclair,
KwaZulu -Natal. On 27 August 2021 , the appellant was convicted as charged and
subsequently sentenced to five years’ imprisonment. He contemporaneously brought an
application for leave to appeal which was refused by the trial court.
[2] With the leave of the KwaZulu -Natal Division of the High Court, Pietermaritzburg,
on petition, the matter served before Henriques and Mlaba JJ (the high court) on 28
October 2022. On 9 October 2023 , the high court dismissed the appellant’s appeal both
on conviction and sentence. On 17 January 2024, this Court granted the appellant special
leave to appeal against conviction only.
[3] The issues on appeal are as follows:
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(a) Whether the trial court was correct in relying on the evidence of the single witness, the
complainant (Mr Zulu) , to convict the appellant ;
(b) Whether the trial court was correct in finding that Mr Zulu’s testimony was
corroborated ;
(c) Whether the trial court commit ted an irregularity that rendered the trial of the appellant
unfair when conducting proceedings; and
(d) Whether the trial court was correct in rejecting the appellant’s alibi as false beyond
reasonable doubt .
[4] The conviction of the appellant was based on the evidence of Mr Zulu, the
appellant , and the investigating officer, Warrant Officer Magutshwa. The trial court also
considered evidence admitted by consent , namely, a medical report, a ballistics report
and a photograph album compiled by Warrant Officer Zungu, being exhibits ‘A’, ‘B’ and
‘C’ respectively. Towards the end of the appellant’s case, the trial court admitted in
evidence, through Warrant Officer Ma gutshwa, the statement made by Mr Zulu on 29
October 2019 as exhibit ‘D’.
The evidence of Mr Zulu
[5] Mr Zulu testified that on 12 September 2019, 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 7 R (the Golf). 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 a nd stopped on the road
that runs parallel to the Shoprite parking area ( this is a reference to Kenyn Howder Road),
directly in front of his car. A person seated in the back of the Golf rolled the left, back
window down. Mr Zulu identified that person as the appellant. For a moment , Mr Zulu
thought that the appellant wanted to greet him, and so he roll ed his window down. At that
moment , the front window of the left passenger door of the Golf was opened, and the next
thing Mr Zulu 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
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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.
[6] The shooting continued for about a minute and when it subsided, the Golf drove
off. At that moment , Mr Zulu realised that he had sustained a serious injury to his left hip
and bruises to his chest. He was unable to move. An Indian ma n, 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.
[7] It was common cause at the trial that the appellant and Mr Zulu 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. They
each appear to have pointed the finger at the other, as a result of which they went their
separate ways. It was also common cause that the incident occurred on a bright sunn y
day, around 13 h30. It was Mr Zulu’s testimony that he had had sufficient opportunity to
identify the appellant. He added that he had not been mistaken in his identification of the
appellant as his assailant. He proceeded to say that he had last seen the appellant at a
meeting held at the Riverside Hotel in Durban sometime between 2017 and 2018. He
disputed the appellant’s alibi. After the testimony of Mr Zulu, the State closed its case.
[8] The appellant testified and denied any involvement in the shooting. He resided at
Yellow wood Park at the time. When questioned about his whereabouts on the day in
question , he told the court that at that time , he had routinely travelled between
Umbumbulu, where he was monitoring the construction of a building on his site, and
Yellowwood Park, where he resided. He confirmed Mr Zulu’s testimony that their
friendship ended in 2011 when they were both arrested. He further admitted having
attended a meeting held at the Riverside Hotel in Durban but denied having interacted
with Mr Zulu at that meeting.
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[9] Warrant Officer Magutshwa, who testified for the defence, recorded a statement
made by Mr Zulu on 19 October 2019. He confirmed Mr Zulu’s testimony that the
manuscript version of the statement was recorded at Mr Zulu’s place of residence. After
recordi ng the statement in writing , he went to his office, typed the statement, and
thereafter returned to Mr Zulu’s place of residence. Both the written and typed versions
of the statement were signed by Mr Zulu. The typed version of the statement was thus
admitted in evidence as exhibit ‘D’. Warrant Officer Magutshwa further confirmed that the
signatures on the statement were his and Mr Zulu’s. That sums up the evidence on which
the guilt of the appellant was established.
[10] The duty to prove the guilt of the accused person rests on the State.1 There is no
obligation on an accused person to prove his or her innocence. An accused person who
advances a version that is reasonably possibly true is entitled to an acquittal .2 When
convicting the appellant, the trial court relied on Mr Zulu’s identification of the appellant
as his assailant. The trial court further found that Mr Zulu’s testimony was corroborated
by photographs that were presented to court.
[11] Before us , Mr Howse SC, who appeared for the appellant , raised four issues :
firstly, that the trial court misdirected itself when finding corroboration in the photographs
that were presented to court; secondly, that the trial court misdirected itself when relying
on Mr Zulu’s identification of the appellant as one of his assailants; thirdly , that the trial
court misdirected itself when rejecting the appellant’s alibi as false beyond reasonable
doubt ; and fourthly , that the failure by the trial court to allow into evidence further
statements made by Mr Zulu duri ng the investigation amounted to a violation of the
appellant’s right to a fair trial. I deal with these issues sequentially.
Single witness testimony
[12] The appellant was convicted solely on the evidence of Mr Zulu. Section 208 of the
Criminal Procedure Act 51 of 1977 (the Act) empowers a court to convict an accused
1 S v Mbuli [2002] ZASCA 78; 2003 (1) SACR 97 (SCA) para 57.
2 Viveiros v S [2000] ZASCA 95; [2000] 2 All SA 86 (A) ; 2000 (1) SACR 453 (SCA) para 3.
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person on the evidence of a single competent witness. It has been authoritatively decided
by this Court that ‘[t]he absence of the word “credible ” [in the section ] is of no significance ;
the single witness must still be credible . . .’.3 When evaluating evidence of a single
witness, the trial court is obliged to exercise caution. In S v Rugnanan ,4 this Court made
the following remarks:
‘. . . The cautionary rule does not require that the evidence of a single witness must be free of all
conceivable criticism. The requirement is merely that it should be substantially satisfactory in
relation to material aspects or be corroborated .’ (My emphasis.)
[13] The trial court found the following corroborating evidence:
‘The witness’s evidence was corroborated to a certain extent by Exhibit C the photo album which
was handed in by consent. In photo 4 the motor vehicle that is portrayed was the complainant’s
motor vehicle and a long black marker has been placed from the complainant’s motor vehicle up
until the beginning of the roadway. The complainant testified that that was the angle at which he
saw the Golf and at the end of the black marker was where the Golf motor vehicle h ad been
parked. When one looks at photo 4 as we ll as the black marker it is clear that the driver of the
Hilux motor vehicle would have a straight line view of the Golf. One can also note from the photo
that point 11 would have been the stopping place of the car. The complainant’s estimate of
approximately seven metres would also be in line [with] the measurement[s] that were taken on
the day in question, and which are part of the exhibit by the forensic science team.’ (My emphasis.)
[14] What stands out in the above passage are the following factual findings made by
the trial court:
(a) Mr Zulu’s motor vehicle was parked in the position depicted in photo 4 of the
photograph album when Mr Zulu identified the appellant as his assailant;
(b) someone had placed a black marker in photo 4 depicting the point where the Golf was
in relation to the appellant’s motor vehicle (when Mr Zulu identified the appellant);
(c) measurements were taken of the distance between the Golf and the appellant’s motor
vehicle; and
3 S v Sauls and Others 1981 (3) SA 172 (A) at 180D.
4 Rugnanan v S [2020] ZASCA 166 para 23.
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(d) given the positions of the two motor vehicles (the appellant’s and the Golf), Mr Zulu
had a straight -line view of the Golf (when identifying the appellant).
[15] There are several inaccuracies in these findings , which appear to be a direct result
of the trial court’s decision to rely, of its own accord, on its interpretation of the
photographs. It did so without the benefit of the testimony of Warrant Officer Zungu (the
photographer) or Captain Naidoo, who was in the c ompany of Warrant Officer Zungu
when the photographs were taken.
[16] Mr Singh , for the State , sought to suggest that the argument pertaining to the
interpretation of the photographs should be disregarded because it was only raised for
the first time on appeal before the high court and not at the trial. I do not agree. The
photographs were not new evidence. They were readily available before the trial court.
Once the trial court decided to rely on the photographs for corroboration, it had to interpret
them correctly. This is particularly so , given the fact that they were the only source of
corroboration that the trial court relied on . If the trial court committed a misdirection in its
interpretation of the photographs , which is challenged on appeal, then this is not
something that an appeal court can ignore.
Was the trial court correct in finding as it did?
[17] That question should , in my view , be answered in the negative for the following
reasons. Firstly, the trial court ’s finding that the marker appearing in photo 4 indicat ed the
spot where the Golf stopped is not supported by the facts. No mention is made in the
photograph album of a marker at all. Had the trial court carefully considered all the
photographs, including photo s 89 and 90, it would have been abundantly clear to it that ,
what it perceived to be a marker in photo 4 , is in fact not a marker. Those photographs
clearly show that what was perceived by the trial court to be a ‘marker’ is the shadow of
an object (possibly a broken pole). Secondly, no mention is made in the photograph album
of any measurements having been taken, depicting the distance between Mr Zulu’s
vehicle and the Golf. Again, the trial court’s finding that ‘the complainant’s estimate of
8
approximately seven metres would also be in line [with] the measurements that were
taken on the day in question’ is not supported by the facts.
[18] Accordingly , the trial court’s finding that Mr Zulu’s vehicle was parked in the
position depicted in photo 4 when Mr Zulu identified the appellant is clearly a n error and
a misdirection. The trial court appears to have focused its attention solely on photo 4 as
if it was the only photograph depicting the position of Mr Zulu’s vehicle . Had it considered
the remainder of the photos, in particular photos 87, 88, 91, 92 and 93, the trial court
would not have arrived at the conclusion that Mr Zulu’s vehicle was ‘parked’ in the manner
described by Mr Zulu. Photos 87 and 88, respectively, indicate that the right -hand side
wheels of Mr Zulu’s vehicle are beyond a concrete slab that marks the end of the parking
area. Photos 90, 91 and 92 indicate that Mr Zulu’s vehicle is adjacent to the brick wall
that runs parallel to the road. From these photos , it is clear that the right -hand side of Mr
Zulu’s vehicle is beyond the edge of the parking lot, closer to the wall. Photos 92 and 93
show damage to the front bumper of Mr Zulu’s vehicle . This observation is supported by
Warrant Officer Zungu , who recorded in the photo album that photos 92 and 93 depict
damag e to the front of a white Toyota Dakar.
[19] At face value , what was described by the trial court as the position in which Mr
Zulu’s vehicle was parked when Mr Zulu identified the appellant , is, in fact , the resting
place of Mr Zulu’s vehicle after the shooting. With that in mind , it was suggested in
argument that Mr Zulu’s vehicle could have moved when Mr Zulu was under attack. I
agree. But that leads to another possibility, namely that Mr Zulu’s vehicle was in motion
when Mr Zulu identified the appellant, a possibility that was never considered by the trial
court. Regard being had to the position of and damage to Mr Zulu’s vehicle and the wall
that separates the parking area from the road, it is highly probable that Mr Zulu’s vehicle
was in motion when the shots were fired and not parked. Had the trial court considered
this, as it ought properly to have done, it would have regarded it as a relevant factor when
assessing Mr Zulu’s evidence.
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[20] In light of the above, it is my view that the trial court misdirected itself in finding
corroboration in photo 4. There was an obligation on the trial court to satisfy itself that the
evidence of Mr Zulu was substantially satisfactory in every material respect. I am not
persuaded that the trial court succeeded in discharging that obligation. The high court
ought not t o have confirmed the trial court’s finding.
[21] In argument , counsel for the appellant submitted that it was questionable whether
Mr Zulu was ever in a position, or had any opportunity, to identify his assailants. As
previously stated, i t was common cause at the trial that Mr Zulu and the appellant knew
each other very well and that the shooting took place in broad daylight. It was therefore
not in issue that Mr Zulu would not have mistaken the appellant for someone else. The
factors set out in S v Mthet hwa5 should not be viewed in isolation but in light of the totality
of evidence.
[22] Mr Zulu gave varying answers when questioned about the positions of the motor
vehicles, both in examination in chief and cross -examination. He had initially stated , in
evidence in chief , that when he entered the Shoprite centre , he had parked his motor
vehicle in the parking area next to the main road, adding that his motor vehicle was facing
the road. Later , the public prosecutor asked:
‘Prosecutor: Was the said Golf vehicle parked next to your vehicle or parallel to your motor vehicle
or…. [indistinct] vehicle?’
To which Mr Zulu replied:
‘The vehicles were parked parallel to each other.’
During cross -examination , the appellant’s attorney asked Mr Zulu the following question:
‘. . . There is something that I do not understand, you say the car was parked in front of you or on
your side, I am talking about the Golf, the tinted Golf ….’
The trial court intervened and reminded the attorney that Mr Zulu had not stated that the
Golf had tinted windows. Shortly thereafter , Mr Zulu responded and stated that the Golf
was parked next to his ca r. Mr Zulu’s response prompted further questions by the court
5 S v Mthet hwa 1972 (3) SA 766 (A) at 768B -D.
10
as it had become evident that Mr Zulu’s testimony regarding the positions of the motor
vehicles was confusing :
‘Court: Sorry I just want to clear up something. So, the white Golf was parked right next to your
vehicle?
Mr Zulu: Yes
Court: In the next parking bay?
Mr Zulu: Your Worship, the situation is this, when I went into the parking area, I went and parked
my car parallel to the main road, so the car came and parked right next to my car, while still on
the main road, that is the Golf.
Court: So, the car was parked in the road, not in the parking lot, the Golf?
Mr Zulu: Yes.’
To clarify the issue further , the court directed Mr Zulu to the photo album and enquired
whether his motor vehicle was parked in the position depicted in photo 4, to which Mr
Zulu responded in the affirmative.
[23] Mr Zulu’s uncertainty regarding the position of his motor vehicle is of vital
importance. Mr Zulu contradicted himself in this respect. 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 then
changed his version and stated that the motor vehicles 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. If Mr Zulu’s motor vehicle had been facing the
road, as he had initially testified, he would have had a clear, unhindered , straight -line view
of what was happening directly in front of him. On the contrary, if the cars were parallel
to each other, as he subsequently stated, then he would have had to turn his head to the
right in order to be able to observe his assailants.
[24] The trial court failed to appreciate the material contradictions in Mr Zulu’s evidence.
In addition, it was Mr Zulu’s evidence that when the shots hit the window , he had ducked
in order to avoid being shot in the head. It is highly improbable, in these circumstances,
that Mr Zulu would have been able to focus his attention on his assailants rather than
11
focussing on saving his life. For all of these reasons , the trial court misdirected itself in
accepting Mr Zulu’s evidence that the appellant was one of his assailants.
Alibi
[25] An accused person’s alibi defence should not be viewed in isolation but ‘in the light
of the totality of the evidence in the case, and the Court’s impression s of the witnesses ’.6
The appellant’s alibi defence was unjustifiably subjected to microscopic scrutiny. I do not
think that the appellant would have done any better than he did in the circumstances when
accounting for his whereabouts on 12 September 2019.
[26] Mr Zulu had testified that he had told the police at the scene on the day of the
incident that he was shot by the appellant. He also gave evidence that he subsequently
deposed to an affidavit on 19 October 2019 in which he identified the appellant as his
assailant. The appellant 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.
[27] As earlier stated, the appellant testified that he routinely travelled between his
place of residence at Yellowwood Park and Umbumbulu , where he was monitoring the
construction of a structure at his newly purchased premises. Save for Mr Zulu’s evidence
implicating the appellant as one of his assailants, there was no other evidence to
contradict the appellant’s explanation of his whereabou ts. As I have outlined earlier, the
trial court erred in concluding that there was evidence corroborating Mr Zulu’s evidence.
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.
6 R v Hlongwane 1959 (3) SA 337 (A) at 341A; see also S v Khumalo en Andere [1991] ZASCA 70; [1991]
2 All SA 341 (A) ; 1991 (4) SA 310 (A) at 327H.
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The appellant’s right to a fair trial
[28] It was submitted , in argument , that the learned magistrate violated the appellant’s
right to a fair trial by denying his attorney the opportunity to present two further statements
made by Mr Zulu to the police during the investigation. When dealing with the appellant’s
right to a fair trial, the high court focused its attention only on the argument pertaining to
the learned magistrate’s interference during cross -examination and ultimately arrived at
a conclusion that the interventions were justified in the circumstances. I deal first with the
witness statements.
The witness statements
[29] As can be seen from the exchanges below , the issue of the witness statements
was a subject of extensive discussion and formed an integral part of the issues on appeal
before us. It is, therefore, important to establish whether Mr Zulu made two or three
statements to the police during the investigation. Although there seemed to be a
suggestion in argument th at he only made two statements, it is clear from the record that
there were three statements that the defence sought to prove. During cross -examination ,
the appellant’s attorney initially presented two statements to Mr Zulu and enquired from
him whether th e signatures attached therein were his, to which Mr Zulu responded in the
negative.
[30] Towards the end of cross -examination, the appellant’s attorney put to Mr Zulu:
‘Thank you, Your Worship. Just one more statements (sic), which was handwritten now, it is not
a typed one, but the same Magutshwa. Do you see the signature down there?’
Again, Mr Zulu disputed that the signature attached in that statement was his. Towards
the end of the trial, shortly before the testimony of Warrant Officer Magutshwa, the
appellant’s attorney again placed on record that he was in possession of three statements
deposed to by Mr Zulu. At that moment , the appellant’s attorney conferred with the public
prosecutor , who appeared to have impliedly concurred. After a heated verbal exchange
between the appellant’s attorney and the court, illustrated above, the attorney proceeded
to hand into evidence one of the sta tements made by Mr Zulu to Warrant Officer
Magutshwa. Immediately after cross -examination, the appellant’s attorney intimated that
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he wanted to introduce further statements. However, the court intervened, causing the
appellant’s attorney to withdraw his intended request and to close the case for the
defence , without leading any further evidence. I am therefore satisfied that there were
three statements that the defence sought to introduce into evidence or clearly more than
one.
[31] I am of the view that the magistrate’s refusal to allow the appellant’s attorney the
opportunity to present Mr Zulu’s witness statements amounted to an irregularity for the
following reasons. Firstly, the learned magistrate became aware , at the early stages of
the trial , of the fact that Mr Zulu had made three statements to the police. Secondly, the
appellant’s attorney had placed on record that his objective was to show that certain
averments made by Mr Zulu , in at least one of the statements , contradicted his testimony
in court. Thirdly, the learned magistrate was alive to the fact that she had prevented the
appellant’s attorney from cross -examining Mr Zulu on the statements on the basis that
these had not been proved. Lastly, it had already been established through the testimony
of Warrant Officer Magutshwa that Mr Zulu had misled the court during his cross -
examination , when disput ing the signatures contained in the witness statement
altogether.
[32] It seems clear to me that the underlying reason behind the learned magistrate’s
refusal to allow into evidence the further statements made by Mr Zulu , was the manner in
which the appellant’s attorney conducted the defence ’s case. When Warrant Officer
Magutshwa testified in chief, the appellant’s attorney should have introduced all three
statements at once, but he did not. He only attempted to introduce further statements
after finalising the cross -examination on the first statement, at which point the learn ed
magistrate lashed out at him , stating the foll owing :
‘But you’ve allowed the court, oh my goodness, Mr…this is not how you conduct a criminal trial.
You don’t put one statement then sit down, allow cross examination, questions by the Court and
then when I am about to excuse a witness you want to start questi oning him again .’
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[33] At that moment , both the learned magistrate’s and the appellant’s attorney’s
tempers had 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. He simply capitulated without any attempt to persuade the
learned magistrate to reconsider her stance. Bearing in mind the fact that the appellant’s
fate rested solely on the evidence of Mr Zulu, the learned magistrate should have either
exercised some patience and allowed the appellant’s attorney the opportunity to present
further statements, or in the exercise of her discretionary power in terms of s ection 167
of the Act, recall ed Mr Zulu in order to establish whether there were indeed contradictions
- either in the statements themselves or between the statements and Mr Zulu’s testimony
in court.
[34] 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. Whether
he could identify the front passenger was clearly a line of inquiry related to the broader
question of the veracity of his evidence. The various statements made by Mr Zulu could
have shed light on this issue, which was critical to the case. 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 right s, in particular the right to adduce and challenge evidence, nugatory.7
This is so in circumstances where the learned magistrate was aware that Mr Zulu had
deposed to three statements, yet the appellant’s attorney had been denied the opportunity
to cross -examine Mr Zulu on them. Moreover, Mr Zulu had misled the court by disputing
the signatures in his statements, and his testimony that he had no prior knowledge of the
appellant’s companion contradicted what he had stated in his written statement.
[35] The manner in which the learned magistrate conducted the trial is to be frowned
upon. In S v Maseko ,8 the court held that a trial judge should guard against conduct which
7 See section 35(3) (i) of the Constitution.
8 S v Maseko [1990] 1 All SA 532 (A) ; 1990 (1) SACR 107 (A) at 109C -D in the headnote.
15
could create the impression that he/she was descending into the arena of conflict between
the appellant and the State as such conduct could create the further impression that
he/she was partisan, and that he/she pre -decided issues which should only be decided
at the end of the trial.
[36] 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 opp ortunity to
prove the State’s case. 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.
‘Court: Is that necessary? Why? The arrest of the accused is not disputed, Mr . . .
[Attorney ]: Yes, but there is some information that is going to be very interesting if she calls, I
don’t want to…. [intervention]
Court: No, no, is it relevant to this trial case, I do not care what is interesting or not. My question
is, there are certain essential aspects of this case.
[Attorney ]: I agree with the court. ’ (My emphasis.)
Further on , the appellant’s attorney revisited the comment he had earlier made and
stated:
‘But I can tell Your Worship now, before I disclose it if she calls the arresting officer, it is going to
kill the State’s case further .’ (My emphasis .)
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[37] It has authoritatively been decided by this Court that a judicial officer should play
an active role in controlling judicial proceedings. In Take and Save Trading CC and Others
v Standard Bank of SA Ltd ,9 this Court held:
‘Fairness of court proceedings requires of the trier to be actively involved in the management of
the trial, to control the proceedings, to ensure that public and private resources are not wasted,
to point out when evidence is irrelevant, and to refuse to l isten to irrelevant evidence. A supine
approach towards litigation by judicial officers is not justifiable either in terms of the fair trial
requirement or in the context of resources .’
[38] However, when exercising control of the proceedings , a court should guard against
usurping the power of the litigants to conduct their respective cases in the manner they
see fit. The core duty of the public prosecutor in criminal proceedings is to assist the court
in arriving at a just decision and that entai ls presenting evidence at the State’s disposal.
It matters not whether the evidence is favourable to the State or not. What matters is that
justice must be seen to be done. In S v Maliga10 this Court authoritatively described the
role of the prosecutor as follows :
‘The paramount duty of a prosecutor is not to procure a conviction but to assist the court in
ascertaining the truth . Implicit herein is the prosecutor’s role in assisting a court to ascertain the
truth and dispense justice. This, not surprisingly, gels with the stringent ethical rules by which all
legal representatives have to conduct themselves in their professional lives .’
It seems clear to me that , were it not for the learned magistrate’s intervention, the public
prosecutor would have called the four witnesses she sought to call, including the arresting
officer. By her conduct, the learned magistrate created an impression that it was no longer
neces sary for the State to call any further witnesses. At that stage, the only witness who
had given evidence was Mr Zulu. The record shows that his evidence was concluded at
around 13 h00 on the first day of the trial.
[39] 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
9 Take & Save Trading CC and Others v Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA);
[2004] 1 All SA 597 (SCA) para 3.
10 S v Maliga [2014] ZASCA 161; 2015 (2) SACR 202 (SCA) para 20; see also S v Macrae and another
[2014] ZASCA 37; 2014 (2) SACR 215 (SCA) para 28 ; S v Jija and Others 1991 (2) SA 52 (E) at 67J -68A.
17
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. It seems to me that the manner in which
the learned magistrate conducted this aspect of 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.
[40] Towards the end of the trial , the learned magistrate and the appellant’s attorney
became entangled in a very heated exchange that followed on the learned magistrate’s
discontent with the attorney’s unpreparedness. The matter had been adjourned for a
week for the defence to lead the evidence of Warrant Officer Magutshwa. On resu mption,
the appellant’s attorney requested a short adjournment to locate the statements that had
apparently been temporarily misplaced but the trial court would have none of it. Tempers
flared in court when the learned magistrate expressed her displeasure towards the
appellant’s attorney, resulting in the unpleasant exchange between the attorney and the
court. The following exchange that ensued immediately after the attorney located the
statements, with the assistance of the public prosecutor, amounts to disreputable conduct
that should have been avoided at all costs :
‘Court: Yes, those statements haven’t been proven but you can proceed.
[Attorney ]: Thank you.
Court: Let’s see how far you get:
[Attorney ]: Sure, thank you. Please, Mr Magutshwa, look at this statement, that is one of them is
written Cyril Phineas Magutshwa, please look it (sic).
Court: Is that the investigating officer’s statement?
[Attorney ]: That’s correct. No, no, no, it is the statement by the accused but it was signed by the
investigating officer.
18
Court: No, you said that statement that’s written Cyril Phineas Magutshwa where it is written,
whose statement is it?.
[Attorney ]: Okay, may I tell the court then? I will ask the court not to shout at me. I don’t
stand…[speaking simultaneously].
Court: It’s very frustrating.
[Attorney ]: No, let me tell you, Your Worship; I don’t stand that nonsense. I don’t allow people to
shout at me because when they shout at me I shout back. I’ve been in this court for more than 30
years, I cannot allow you to shout at me.
Court: Well, stop pointing fingers at me and number 2 I haven’t yet started shouting at you.
[Attorney ]: You are shouting at me, I’m telling you now.
Court: I’m telling you loudly and in very clear voice that I do not believe for one week that you had
these statements you do not – you not even ready, you are not even prepared.
[Attorney ]: I am ready.
Court: And I’m sorry, I cannot waste court time, once we start we just start and we work.’ (My
emphasis.)
[41] What follows clearly shows that there was a misunderstanding between the
learned magistrate and the appellant’s attorney , which appears to have been clouded by
a fiery temperament that prevailed in court. When the appellant’s attorney attempted to
put the statement to Warrant Officer Magutshwa , the learned magistrate intervened and
unjustifiably attempted to prevent him from questioning Warrant Officer Magutshwa about
the statements. This resulted in another unpleasant exchange:
‘Court: It is also not this witness’s statement so you can’t put it to him . . .’
[Attorney ]: No I said, if the Court was listening to me, I said in this statement there it is written
Cyril Magutshwa and it is there as a fact. I’m not lying.
Court: It is not Cyril Phineas Magutshwa’s statement.
[Attorney ]: I did not say it’s Cyril Phineas Magutshwa’s statement. . . this war seems to be
interesting [?] between you and me and let it go on, let it be .
Court: Written where Mr . . .?
[Attorney ]: Between you and me.
Court: No, written where on the statement that it says (sic).
[Attorney ]: Let me show the Court, give it back to me.
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Court: Yes, you don’t understand, the Court doesn’t have these statements so I don’t know where
it’s written.
[Attorney ]: That is why, because the Court is least prepared to listen to me. I am saying that in
this statement it is written Cyril Phineas Magutshwa and here is the thing, it is written here.’ (My
emphasis.)
[42] At that point , tempers had flared to the extent that the learned magistrate’s open -
mindedness had already been compromised. Were that not the case, the learned
magistrate would not have attempted to prevent the appellant’s attorney from presenting
Mr Zulu’s statement to Warrant Officer Magutshwa. The attorney had made his intentions
known at the early stages of the trial that he sought to prove the statements made by Mr
Zulu to Warrant Officer Magutshwa. There fore, there should have been no doubt in the
court’s mind that what the appellant’s attorney sought to present was a statement made
by Mr Zulu to Warrant Officer Magutshwa, not the other way round. 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. That explains the reason why the appellant’s attorney simply
caved in towards the end of the trial and abandoned the introduction of the further
statements made by Mr Zulu , when the learned magistrate expressed her dissatisfaction
at what she perceived to be incompetence on his part. In my view, the conduct of both
the learned magistrate and the appellant’s attorney, conside red in the light of the totality
of evidence, amounted to a material failure of justice.
Conclusion
[43] To conclude, I am of the view that the trial court misdirected itself on the following
grounds : it erroneously found corroboration for Mr Zulu’s evidence in the photographic
evidence, and it erred in rejecting the appellant’s alibi defence. The high court equally
erred in confirming the approach followed by the trial court in how it approached the
evidence of Mr Zulu . It ought to have overturned the conviction of the appellant . For this
20
reason, the submission made by counsel for the State that the matter should be remitted
to a differently constituted court for the trial to start de novo , in the event that the conviction
were to be set aside, has no merit.
[44] In light of the above , it is my view that the appellant was wrongly convicted by the
trial court and that his conviction was erroneously confirmed by the high court .
[45] In the circumstances, I make the following order:
1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
‘1 The appeal is upheld.
2 The order of the Regional court, Durba n is set aside and replaced with the
following:
“The accused is found not guilty and is discharged .”.’
________________________
N E CHILI
ACTING JUDGE OF APPEAL
21
Appearances
For the appellant: J Howse SC
Instructed by Instructed by: Arvina Harricharan Attorneys, Durban
Blair Attorneys, Bloemfontein
For the respondent: M Singh
Instructed by: Director Public Prosecutions, Durban
Director Public Prosecutions, Bloemfontein.