About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2024
>>
[2024] ZAECQBHC 9
|
|
S v Jacobs (7 February 2024) (CC 44/2022) [2024] ZAECQBHC 9 (7 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE
NO.: CC 44/2022
In
the matter between:
THE
STATE
and
ZAMUXOLO SMALL JACOBS
JUDGMENT
GQAMANA J
[1]
The accused, Mr
Zamuxolo Small Jacobs
is charged with murder,
read with the provisions of section 51(1) of Act 105 of 1997 as
amended by Act 38 of 2007. It is
alleged that on or about 9
September 2022 at house no. […] M[…] Street,
kwaNobuhle, Kariega, the accused unlawfully
and intentionally killed
Zikhona Pompi
(hereinafter referred to as “the
deceased”), by stabbing her with a knife on the neck.
[2]
The accused pleaded guilty to culpable homicide, (a competent verdict
to the charge of murder),
in terms of
section 258
of the
Criminal
Procedure Act 51 of 1977
. The State did not accept his plea and
the plea of not guilty was entered. The matter proceeded to
trial.
[3]
At this juncture I must mention that the accused admitted in his
statement in terms of
s 112
of Act 51 of 1977 (Exhibit A) that:
“
4.1
On 09 September 2022 at 0[…] M[…]
Street, kwaNobuhle, Kariega (“the premises”) I did
unlawfully kill Zikhona
Pompi, a 26 year old female person (“the
deceased”), by stabbing her once with a kitchen knife.
4.2
For the last two years prior to her death, the deceased and I were in
a domestic relationship
and we resided at the premises together with
my sister, Nondyebo Jacobs (“my sister”).
4.3
No children were born from this relationship.
4.4
The deceased was not employed, but I did part-time jobs for the
municipality of Kariega
when and if they had opportunities.
4.5
Both of us made regular use of drugs in the form of smoking Tik
during our relationship.
4.6
We did have verbal arguments during our relationship, mostly on
occasion that the deceased
would not return to the premises at night
or sleep there. The deceased was previously involved with a man
that I considered
to be a gangster, and I feared that she might come
to harm.
4.7
On 09 September 2022 I returned to the premises at approximately
17:00 after doing part-time
work for the municipality. I used
the money that I had earned that day to buy Tik and liquor, namely
Old Brown Sherry.
Upon my arrival at the premises, the deceased
was not there. The deceased had also not slept at the premises
the previous
night.
4.8
My friends, Chulumanco Tlana (“Chulu”) and Ayabulelwa
Mbotya (“Aya”)
came to visit me and we partook in using
the Tik, by smoking it through a glass pipe. We were also
drinking from the liquor.
My sister left at approximately 22:00
to go and visit her boyfriend, Sonwabile Mfikile (“her
boyfriend”).
4.9
At approximately midnight I decided to go and look for the deceased,
who had not yet returned
to the premises. I left Chulu and Aya
behind and made my way to G[…] Street to a certain Charlie’s
house, where
we on occasion smoke Tik together.
4.10
I found the deceased there and confronted her about what she was
doing, because I had been looking
for her the whole day. I
could see that the deceased was under the influence of the Tik and
she informed me that she had
been looking for bus fare during the
course of the day. I asked why she didn’t come to me for
bus fare if she needed
it, and asked her to come home with me.
4.11
The deceased did not want to leave and said “no”, and
further ignored me and continued
on her phone, the one that I had
bought her, being involved with Facebook. I wanted to force her
to come with me and thus
grabbed her where she was sitting on the
couch and trying to bring her to her feet. She was yelling at
me, telling me that
she was busy on Facebook. I slapped her
once on her head and whilst holding her by the arm pulled her from
the couch and
started to exit that house with her in tow.
4.12
The deceased still had the phone and we were arguing on our way back
to the premises, which was approximately
five streets away. I
wanted her to explain why she was at that house and she stated that
she did not want to wait for me
to get back before she smoked Tik.
4.13
On our arrival at the premises, Chulu and Aya were still there.
We were still arguing and the
deceased told me that the people who
she had smoked with, had told her to leave me, because I was not
treating her well.
I told her that she should not be listening
to those people. I had closed the door and was pushing her away
from it to prevent
her leaving again. The deceased started
screaming at me and wanted to leave. She picked up a cup and
threw it at me,
but did not hit me. By now we had moved to the
bedroom. I don’t know whether Chulu and Aya were still in
the
lounge.
4.14
I grabbed hold of her and slapped her once on her cheek. She
also threw a jug at me, but I can’t
recall that it had anything
in it.
4.15
At that stage my sister and her boyfriend arrived and my sister
intervened saying that I should leave
the deceased alone. I
stopped, sat down on the other side of the bed and told the deceased
that she should leave. It
was then that she threw me with a
glass bottle of roll-on anti-perspirant, but that too didn’t
hit me.
4.16
It was then that I picked up the kitchen knife, lying on a side table
next to the bed. It was
more or less 25 cm long and the blade
was approximately 2.5 cm wide. I had used it earlier to cut
open the plastic packet
of Tik.
4.17
The deceased saw me picking up the knife and started to run towards
the lounge as I went around the
bed. My sister’s
boyfriend was in front of her, but she managed to go around him,
being much shorter than him.
Her back was facing me as she went
around him and I stabbed her once on her left neck.
4.18
I was shocked, because I only wanted to stab her on her back, not on
her neck. I was crying and
saying I am sorry. She was
bleeding a lot and told my sister that I had finished her. She
fell down in the kitchen
area and I ran out through the front door to
go and find transport to take her to the hospital.
4.19
When I returned to the premises during the early hours of the morning
with transport, I found it to
be empty, with everybody gone. I
was afraid of the people from the deceased’s area and what they
might do to me and
did not go and look for her at the hospital.
I took the knife that I had used to stab her and threw it in a
dustbin.
4.20
I went to my father’s house and went into hiding there.
This the same place where the investigating
officer finally arrested
me in January 2024.
”
[4]
In addition to the above, the accused made admissions in terms of
section 220 of Act 51 of 1977.
Central to this case, the
accused admitted:
(a) the identity and age
of the deceased,
(b) that the deceased
died on 9 September 2022;
(c) that the cause of
death was the blood loss and the stab wound on the neck as set out
and recorded in the post mortem report
compiled by Dr
De Beer
;
and (d) the entire post mortem report (Exhibit “C”).
[5]
In light of the admissions made by the accused, most facts became
common cause. Although
accused admitted that he stabbed the
deceased, his defence is that he had no intention to kill her.
So the issue in this
case is about the element of intention.
[6]
It is trite law that, the onus is upon the State to prove its case
against an accused person beyond
reasonable doubt. Two
witnesses testified on behalf of the State, namely Mr
Mfeketho
(alias
Soso
) and Dr
De Beer
. The accused also
testified for his defence. For chronological purposes, I
will deal first with the common cause
facts on how the events
unfolded leading up to the scene.
[7]
The following facts are common cause that, the accused resides at
house no. 3 Maroka Street, with
her sister
Nondyebo
and the
latter is
Soso
’s girlfriend. Because of that
relationship, the accused refers to
Soso
as his
brother-in-law. The accused and the deceased were in a love
relationship for approximately 2 years before the incident
herein.
Although they were not married, but the deceased would often sleep
over at the accused’s home. The night
before the incident
herein, the deceased did not sleep at the accused’s home and
that angered him. On the day in question,
when the accused
returned from his casual job, the deceased was not at home. The
accused decided to look for her and found
her at Gwali Street at the
house where they often smoke Tik and mandrax. The deceased was
with other men smoking Tik.
The accused considers these men to
be gangsters. Fuelled with anger, frustration and jealousy, the
accused instructed the
deceased to leave with him. When the
deceased refused, he slapped her with an open hand and forced her to
leave with him.
En-route to his home, the fight continued.
Both the deceased and the accused were not sober, the accused had
drunk at least
2 bottles of old brown cherry and smoked Tik and
mandrax. The deceased had also smoked Tik. Anticipating
that the fight
between him and the deceased may intensify, the
accused instructed “
Aya
” and “
Chulu
”
(“his friends”) to summon
Soso
and his sister to
his house. Indeed, both
Soso
and his sister responded
and went to the accused’s home. On their arrival the
situation was calm.
Soso
spoke sense with the accused
and managed to calm him while
Nondyebo
spoke with the
deceased.
[8]
When the situation was calm,
Soso
conveyed to the accused that
Nondyebo
and him would leave and sleep at his place. It
was at that moment that the deceased also expressed her desire to
leave as
well. That, together with the fact that the deceased
did not sleep at the accused’s house the day before, infuriated
the accused. From hereon there are diverse versions between
Soso
and the accused.
[9]
On
Soso
’ version, he walking in front, followed by
Nondyebo
and behind her was the deceased when they were
leaving the house. The accused was in his bedroom as depicted
in Exhibit “E”
and also photo 10 in Exhibit “D”.
However, on the accused’s version, the deceased threw him with
a mug
while he was lying on his bed. It is then that he grabbed
a kitchen knife which was next to his bed and moved around his bed
chasing the deceased and stabbed her with the knife. It is
common cause that the knife is 25 cm in length. His intention
was to hurt the deceased by stabbing her on her back.
Accidentally, (so he says) he stabbed the deceased on the neck,
because
she took cover by moving around
Soso
’s armpit
area. Realising that he had stabbed her, he was shocked and ran
out to look for a transport to take her to
hospital. However
due to the fact that it was midnight, it took him time to get a
transport and on his return home there
was no-one.
[10]
Ms
Bakker
, counsel for the accused, conceded that the accused
was a poor witness. However, she argued that, the State failed
to prove
that the accused subjectively foresaw the possibility of his
conduct (i.e. the stabbing of the deceased) would cause her death and
also that he reconciled himself with that possibility.
[11]
Firstly, the State rely on
dolus directus
. Counsel
for the State, Mr
Gqamane
argued that, the accused had a clear
motive and intention to kill the deceased, based on the narrative
that the deceased did not
sleep at the accused’s home the day
before, coupled with the fact that the accused found her smoking Tik
with other men and
because of all that he was jealous. As an
alternative, he argued that the accused had intention in the form of
dolus eventualis
.
[12]
I accept that the accused’s conduct was fuelled by anger and
jealous but the evidence does not prove
beyond reasonable doubt that
he had direct intention to kill the deceased. Before
Soso
and
Nondyebo
arrived, the accused was alone with the deceased,
were continuing shouting at each other, and that could have been
sufficient opportunity
to kill her then. Further although the
conduct of the deceased infuriated the accused but, at the time
Soso
and
Nondyebo
arrived he had calm down. What triggered
the accused to stab the deceased was when she expressly said she was
also leaving
with
Soso
and
Nondyebo
.
[13]
The accused’s version that the deceased threw him with a mug is
rejected as false, because firstly
Soso
, was clear in his
evidence that such incident never happened. The accused
conceded that there was no animosity between him
and
Soso
.
Although
Soso
was not an eloquent witness but his narration of
events and testimony was clear and consistent. Secondly, the accused
when pressed
hard under cross-examination on his version on this
point, he conceded that he had no clear recollection of events
because of his
state of sobriety at that time.
[14]
Insofar as
dolus eventualis
, the accused on his own version
acknowledged that a knife is a dangerous weapon. Further he
knew that, if a person is stabbed
by a knife, he or she could die.
His evidence was that, his intention was to stab her on the back.
He knew and appreciated
that the back area of the body contains vital
organs, but regardless of that, he stabbed her. His own version
is sufficient
to convict him of murder
dolus eventualis
.
[15]
In
S
v Makgatho
,
[1]
Shongwe JA held that:
“
A
person acts with intention, in the form of
dolus
eventualis
, if the commission of the
unlawful act or the causing of the unlawful result is not his main
aim, but he subjectively foresees
the possibility that in striving
towards his main aim, the unlawful act may be committed or the
unlawful result may ensue, and
he reconciles himself to this
possibility.”
[16]
In this case the objective evidence of Dr
De Beer
which was
unchallenged was that, the deceased must have been directly infront
of the accused when he stabbed her, hence the position
of the wound
on the left side of the neck and the tract of the wound.
Together with that the post mortem report shows that
the deceased had
“
3 cm stab wound on the left side of the neck; wound is 6 cm
above the left clavicle and 8 cm from midline; track of wound goes
downwards,
towards the back and from the left to right; it penetrates
the left cavity behind the left clavicle; goes through upper lobe of
the left lung, through mediastinum and arch of aorta into right chest
cavity
”. Fearing of repeating myself, the accused’s
exposition of the position of the wound that, the deceased spinned
or
turned around as she was taking cover, is far-fetched and false. It
is so inconsistent with the objective evidence and it cannot
be
reasonably possible true and it is rejected as false. In my
view, the accused subjectively foresaw the possibility that
stabbing
the deceased with a knife that is 25 cm long on the upper body may
cause the death of the deceased and he reconciled himself
to that
possibility.
[17]
Accordingly, I am satisfied that the State has proved
dolus
eventualis
and has discharged its onus. In the
circumstances, the accused is FOUND GUILTY OF MURDER.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the State
Adv
T Gqamane
Instructed
by
Director
of Public Prosecutions
Gqeberha
Counsel
the Defence
Adv
H Bakker
Instructed
by
Legal
Aid South Africa
Gqeberha
Heard
on
5, 6
and 7 February 2024
Judgment
Delivered on
7
February 2024
[1]
2013
(2) SACR 13
(SCA).