Ngobeni v S

The appellant and the complainant were driving from Pretoria City Centre towards Atteridgeville when a road rage incident developed between them. They overtook each other on several occasions until they reached an Engen petrol station in Atteridgeville and parked. The complainant alighted and approached the appellant who was seated in his vehicle to enquire about his dangerous driving. According to the complainant, the appellant threatened to shoot him ("my son ek sal jou skiet") and as the complainant turned to walk away, he was shot from behind. The complainant was hospitalized on 29 October 2002 and discharged the next day, but only reported the incident to police in February 2003, four months later. The appellant's version was that the complainant and two passengers approached his vehicle, forcefully opened the driver's door and assaulted him, causing him to bleed. He drew his firearm and fired a shot in self-defence, not realizing he had shot someone. A medical report (J88) was admitted by consent, indicating the entry wound on the right back near the buttocks and exit wound on the right front next to the groin, but contained question marks under "clinical findings" suggesting uncertainty. The appellant was convicted of attempted murder in the regional court and sentenced to 4 years imprisonment. The North Gauteng High Court dismissed his appeal, and he appealed to the Supreme Court of Appeal with leave.

• Whether the State proved beyond reasonable doubt that the appellant did not act in self-defence
• Whether the medical report with ambiguities should have been clarified by calling the doctor as a witness in terms of section 186 of the Criminal Procedure Act
• Whether the trial court properly evaluated two mutually destructive versions
• Whether the trial court should have been more proactive in calling for evidence to ensure a just outcome
• Whether contradictions and inconsistencies in the State's case created reasonable doubt

The appeal was upheld by majority decision (2-1) and the conviction was set aside. The Supreme Court of Appeal found that the State had not proved the appellant's guilt beyond reasonable doubt given the uncertainties in the evidence and the failure to clarify crucial ambiguities in the medical report.

Where a medical report admitted in evidence contains ambiguities or uncertainties on matters crucial to the determination of guilt (such as the direction from which a shot was fired), and the State relies on that report to corroborate its case, the trial court has a duty in terms of section 186 of the Criminal Procedure Act to call the doctor to clarify those uncertainties. Failure to do so, combined with other contradictions and inconsistencies in the State's evidence, may result in the State failing to discharge its burden of proving guilt beyond reasonable doubt. Where there are two mutually destructive versions, the court must evaluate the evidence holistically and if the accused's version is reasonably possibly true, even if improbable, the accused is entitled to an acquittal. The court's role as administrator of justice requires proactive intervention to obtain essential evidence, without descending into the arena and compromising impartiality.

The court made several important obiter observations: (1) Shongwe JA (dissenting) commented extensively on the unacceptable delay in preparing the appeal record, stating that such delays give credence to the adage "justice delayed is justice denied." (2) Shongwe JA criticized the trial court's incorrect approach to granting leave to appeal, noting that the test is whether there are reasonable prospects of success, not merely that the judge does not wish to "be judge in my own case" or that an appeal is arguable. The correct test requires a dispassionate decision based on facts and law, asking whether a reasonable person adopting a different line of reasoning could come to a different conclusion. (3) Bosielo JA emphasized that section 186 introduces an inquisitorial element to South Africa's fundamentally adversarial criminal justice system, but courts must be careful not to descend into the arena and lose their impartiality. (4) The court noted that in road rage situations involving heightened emotions and confrontations, courts should carefully consider whether the requirements of self-defence are met, including whether the defensive action was proportionate to the attack and whether there were alternative means of defense available.

This case is significant in South African criminal law for several reasons: (1) It reinforces the importance of section 186 of the Criminal Procedure Act, emphasizing that courts have a duty to be proactive in calling witnesses where evidence is essential to a just decision, particularly where expert evidence contains ambiguities or uncertainties. (2) It confirms that while South African criminal procedure is fundamentally adversarial, courts must sometimes adopt an inquisitorial approach to prevent injustice, citing the seminal case of R v Hepworth that a judge is "an administrator of justice" not merely an umpire. (3) It reiterates the proper approach to evaluating mutually destructive versions, requiring a holistic assessment rather than piecemeal analysis, and emphasizing that if an accused's version is reasonably possibly true, he must be acquitted even if improbable. (4) It demonstrates the application of the Difford principle that the State bears the onus of proving guilt beyond reasonable doubt. (5) The case highlights the danger of relying on medical evidence admitted by consent without ensuring that all ambiguities are resolved, particularly where such evidence is used as corroboration for a crucial element of the State's case. (6) It also comments on the correct test for granting leave to appeal (reasonable prospects of success) and criticizes delays in preparing appeal records.