S v Jam-Jam (CC37/23) [2024] ZAECMHC 103 (17 July 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 LOCAL DIVISION: MTHATHA

CASE NO.CC37/23

Delivered :17/07/2024

Reportable: Yes /No

In the matter between:

THE STATE

VS

THULANI JAM-JAM

JUDGMENT

MJAME AJ

Introduction

[1] The accused was indicted in this Court on four charges being the ROBBERY in contravention of section 155 of Act 9 of 1983, Murder in contravention of section 84 of the Transkei Penal Code Act 9 of 1983 read with sections 51(2) and Part 2 of Schedule 2 of the Criminal Law Amendment Act 105 as amended. Murder in contravention of section 84 of Act 9 of 1983 read with section 51(1) and Part 2 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended., possession of dangerous weapon in contravention of section 3(1) read with sections 1,2 and 3(2) Of Dangerous Weapons Act 15 of 2013, further read with section 183 of Act 9 of 1983.

In respect of Count 1: Robbery, it is alleged that upon or about 3 June 2022 and at or near Misty Mount, in the District of Libode, the accused did unlawfully and intentionally assault N[...] T[...] and did then and with force take a bottle of beer from her, her property in her lawful possession.

Count 2: Murder, it is alleged upon the same time, date and place mentioned in Count 1 the accused did unlawfully and intentionally kill Mthandeni Mshiywa an adult male person.

Count 3: Murder, allegation is that upon or about the same date, time and place mentioned in Count 1, the said accused did unlawfully and intentionally kill N[...] T[...]. an adult female.

Count 4: Possession of dangerous Weapon: It is alleged that upon or about the date and place mentioned in Count 1 the accused was unlawfully and intentionally in possession of a dangerous weapon which if used in assault, could inflict serious bodily injury, to wit a knife.

[2] The accused is represented by Mr Sakwe and the State is represented by Advocate Methuso.

[3] Prior to pleading, the accused was apprised of the prescribed minimum sentence of fifteen (15) years in respect to count 2, as well as the prescribed minimum sentence in respect to count 3 which is life imprisonment. The accused was also apprised of competent verdicts in respect of count 1, 2, and 3.

[4] The accused pleaded not guilty to all counts. The plea explanation given by the accused is that he denies allegations against him. He did not commit the said offences. He never met with the deceased persons on the date of the alleged incident. At all material times from 15h00 till the following day he was at his home. He has a witness to call by the name of LINDOKUHLE JAM-JAM

Summary of substantial facts.

[5] The summary of substantial facts attached to the indictment and provided to the accused in terms of section 144(3) (a) of the Criminal Procedure Act 51 of 1977 (the CPA) read as follows:

“1. On the 3rd June 2022 during the night accused was on his way from home to a certain tavern when he met the deceased in Count 3, who was his

girlfriend, walking with the deceased in count 2.

2. She was carrying a beer she was consuming with the deceased in count 2.

3. Accused snatched the beer from her, took out his knife and stabbed deceased in count 2 to death.

4. deceased in count 3 witnessed the stabbing of the deceased in count 2 before she ran away but accused chased her and caught up with her not that far from where the deceased in count 2 got stabbed. Accused stabbed her to death as well. He then turned back and went home.

5. A passer-by spotted the two bodies and alerted community members and police were called to the scene.

6. Both deceased persons were conveyed to the state mortuary where post mortem examinations were conducted.

7. According to the post mortem reports, both victims died due to a “vascular injury secondary to stab with a sharp object.”

8. Investigations led the police to accused who was the boyfriend of the deceased in count 3. Upon being interrogated accused implicated himself to both murders and robbery. The clothes he was wearing were confiscated after he confirmed they were ones he had worn during the said murders.

9. He was taken to the commissioned officer where he made a confession and also taken to another commissioner where he did a pointing out which led to the recovery of the murder weapon, pointed out by the accused at his residence.

10. the said clothing items were sent to the laboratory for DNA analysis.

11. The state alleges that the murder of N[...] T[...] was premeditated, and she was killed because she was likely to give material evidence in the murder proceedings in count 2.

[6] The court was further advised that certain admissions in terms of section 220 of the CPA[1] have been agreed by the State and the defence and Marked as Exhibit “A”. They read thus:

“1. That the deceased are the persons referred to in the indictment, namely, Mthandeni Mshiywa [DR NO. 934/2022], an adult male person and N[...] T[...] [DR NO.933/2022]

2. That both deceased died as results of “vascular injury secondary to stab with a sharp object.”.

3. That deceased bodies did not sustain any further injuries from the time they were removed from the scene on 03 June 2022 until Dr Vuyolwethu Theophilus Mlaba conducted post-mortem examinations on them on the 4 June 2022.

4. That the post-mortem reports marked PM No. 934/2022 and PM No. 933/2022, completed by Dr Vuyolwethu Theophillus Mlaba are true and correct in all their contents, including observations, findings and conclusions stated therein.

5. The handing in of the reports on a medico-legal post mortem examination as EXHIBIT “B” and EXHIBIT “C” respectively is consented to.

6. That no member of the medical, nursing, hospital, ambulance or S.A Police Service staff is held to be responsible for or contributed towards the death of the deceased’s

7. That the photo album depicting the crime scene as well as the key thereto, as compiled by Sergeant Monwabisis Soganga as well as its contents, are true and correct.

8. That the photo album of the scene and its key be admitted as EXHIBIT “D”

[7] The additional exhibits handed in by consent were as follows:

Exhibit “E” the OB register in which the exhibits were registered.

Exhibit “F” Acknowledgement of Exhibit item receipt by the Forensic Science Laboratory

Exhibit “G” SAP21 - Exhibits and control document by Forensic Science Laboratory

Exhibit “I” Pro forma used in taking of confession which was used in the trial within a trial.

Exhibit “J”- Notes on the pointing out of a scene compiled by Captain Nqunqa

Exhibit “K” -Notice of rights in terms of section 35 of Act No. 108 of 1996

Exhibit “L” Warning statement of the accused

Exhibit “M” – The OB register in which the knife which was pointed out by the accused was registered

Exhibit “N” – Photo album compiled during pointing out by the accused

[8] The state to prove its case called the following witnesses, namely,Solethu Joni,Luyanda Diza, Nozipho Mjadu-Timakwe, Lusindiso Mnukwa, Luvuyo Bhodoza,Xolile Mdepha,

EVIDENCE OF THE

STATE

[9] SOLETHU JONI, testified under oath that he does not know the accused. On the evening of the 3rd June 2022 about 22h00 he was coming from Buswana homestead when on the way he came across with two people lying down on the road on separate spots. One was lying next to the corner of Mpehle’s yard behind the toilet. The other one was lying on the road. He did not come closer to them as he was afraid. He did not check whether they were alive or not. He left to call one Mr Diza who is a police forum member. He also called Tsotso who is the neighbour of Mr Diza. The local people were also summoned

to the scene. He came back to the scene with other local people. It transpired that both bodies were deceased. He knew both deceased

persons. He used to see them together and concluded that they were in love relationship. He did not notice whether accused was amongst the local people who attended the crime scene.

[10] LUYANDA DIZA, who is a community police forum chairperson in Misty Mount testified that he knows the accused from his locality. On the evening of the date of the incident he was at his home when he received a phone call from one Simnikiwe Bhokolo who is also a police forum member calling him to the crime scene. He proceeded there and found the community members already there. On arrival he saw two dead bodies on separate spots. He then phoned the police officials. The police arrived and took statements from some people who were at the crime scene. He knew both deceased persons. He started to know that the two deceased were in a love relationship on that evening. The accused person was not amongst the community members who were at the crime scene. The photographer and forensic also arrived. The deceased’s bodies were taken by the forensic pathology vehicle.

[11 NOZIPHO MJADU, the police officer employed by the South African Police Services station at Libode testified that on the 3rd June 2022 he was on duty doing night shift. She received a telephone call from one Mr Diza who is the chairperson of the Community Police Forum in Misty Mount, informing her about the deceased’s bodies who were found dead in his locality. She and other police officers proceeded to the scene. On arrival there were local people. she observed a female and a male body lying down on separate spots being injured. On arrival they were already dead. She called her supervisors. The forensic pathology vehicle and photographer arrived at the scene. She observed injuries on both deceased. They had open wounds on the neck.

[12]. LUSINDISO MNUKWA, a police officer stationed in Libode testified that he is the investigating officer of this case and also an arresting officer

of the accused. He was allocated a docket on the 4th June 2022 to investigate a murder case of the two deceased persons in Misty Mount. The murder of the deceased happened on the 3rd June 22. He proceeded to the crime scene to collect information. Upon his investigations he got information that the accused had a love relationship with the female deceased in Count 3. He was shown the homestead of the accused. He proceeded to his home and did not find him. He left a message to the old woman who was in that homestead to convey to the accused, that he must come at Libode police station.

[13] On the following day whilst he was at work he was informed that there was someone who wanted to see him. This person was brought to his office by a police officer. He introduced himself as Thulani Jam jam. He then requested him to assist in investigation of the case of murder of the two deceased. He asked him if he was in love with the deceased in Count 3. Accused confirmed that he was once in love with her. He further explained that there was a stage he broke up with the deceased but they reconciled and continued with their love relation. Accused did not know who killed the deceased persons. He told him that he did not know the deceased in Count 2. As he was still talking with the accused he noticed blood stains on his track top and pant. He enquired from him why his clothes have blood spots. Accused responded that he was assisting in slaughtering a beast at a certain homestead where there was a ceremony. The accused could not remember what role he played when the young men were slaughtering whether he was slaughtering or holding the beast. He then requested him to undress the track top and pant. Accused then was wearing two pants. He then put the track top and pant in an exhibit bag and sealed it in the presence of the accused. He told the accused that the items will be

sent to the laboratory for tests. It is at that stage accused voluntarily admitted killing both deceased. He called the accused at the police station as a potential witness who will assist him in conducting his investigations since it was said that the accused had a love relationship with the deceased in Count 3.

When accused admitted killing the deceased he immediately stopped him and explained his constitutional rights. he asked him whether he can repeat what he said to another person. Accused agreed to do so. He then consulted Captain Pinyana and informed him about what accused had told him. Captain Pinyana arranged that the accused be taken to make confession to Lt Colonel Mdepha at PRD Building in Umtata on the 5th June 2022. Accused also volunteered to do pointing out.

Captain Nqunqa was also arranged to assist in pointing out by the accused.

[14] Captain Nqunqa and the accused left together for pointing out. On their return Captain Nqunqa gave him a knife saying he got it from the accused and is the weapon he used in committing the murder of the deceased persons.

He recorded it in SAP13 register. He then detained the accused. The seal exhibit bag was also entered in SAP 13 register.

Blood samples were also taken from the deceased persons by Doctor Mlaba. They were sealed in different containers with different labels. He left the blood samples at the forensic department since they do not have safe place to keep them at the police station. He later fetched them when they to be taken to the laboratory. The accused’s clothes and the knife in a seal bag were entered in SAP Register No: 233B/2022.

Blood samples of the deceased N[...] T[...] was marked with seal No.: PA 4005574547

Blood samples of the deceased Mthandeni Mshiywa was marked with seal No:PA 4005582608

Clothing and knife were marked in a seal bag No: PA4005583247

[15] The exhibits were taken by Sergeant Bodloza to the laboratory. They were still intact. The blood samples were tested at the laboratory. The blood results positively matched both deceased’s blood with the blood which was on the clothes of the accused marked PA 4005583247.

[16] The witness was cross examined by the defence putting the version of the accused, that accused denied admitting the commission of the alleged offences. It was also put to the witness that at no stage his clothes had blood stains. It was also put to the witness that the reason for him to arrest the accused is because he heard that the deceased was in an abusive relationship with the accused. The version which was put to the witness is that the accused admitted killing the deceased persons because he was assaulted by the witness and other police officials. Further that it was easy for the accused to point out the crime scene because everyone in the locality knew where deceased bodies were found. It was further put to the witness that he visited the accused’s place and took some items belonging to the accused. The version of the accused was vehemently disputed by the witness.

[14] Sergeant LUVUYO BHODOZA, who is a police officer stationed in Libode, testified that on the 28 June 2022 he was requested to take the exhibits to the laboratory by Sergeant Mnukwa who is the investigating officer of this case. He booked out the said exhibits at the charge office in the presence of Sgt Mnukwa. They were in two separate bags, respectively marked, PA 4005582608, PA 4005583247. He then put the two exhibits in one bag with seal No P4B000121482 which were handed over to the laboratory technician.

The items were received in tact by the laboratory technician and the proof of receipt marked Exh” F” with serial No: 57036527.

[15] The laboratory analysis report was handed in by consent of the parties and marked Exh ‘H’. The laboratory findings were that the DNA result obtained from the trouser (P4B000121482) matches the DNA result of the reference sample (21DBAH8403, PA4005583158) and the most conservative occurrence for this DNA result is 1 in 2.4 x10 trillion people.

The DNA of the reference sample (21DBAH8402, PA 4005583157) is read into mixture DNA result obtained from the track top (P4B000121482) and the most conservative occurrence for all the possible contributors to this mixture DNA result is 1 in 17 trillion people.

No DNA was obtained from the knife (P4B000121482).

[16] Thereafter the State led the evidence of confession and pointing out in trial within a trial. The confession and pointing out were ruled admissible by the court.

EVIDENCE OF THE

ACCUSED

[17] THULANI JAM JAM, the accused testified under oath that on the 3rd June 2022 he woke up in the morning proceeding to Sgedlemba tarvern where he found the cousin of deceased N[...]. They consumed liquor. N[...]’s cousin left him at the tavern consuming liquor with one Xolelwa. About 15 h00 he ran out of money and left to his home to fetch money. He was drunk. On arrival at home he watched television in his younger brother’s room with other young men. He does not know what happened. He woke up sleeping in his bed. At all material times from 15 h00 he was at his home sleeping till the following morning. In the morning he left for his odd jobs. He then went via the tavern. He only heard of the death of the deceased person whilst he was at the tavern. He did not know who were the victims. He then left to his home. On arrival at his home he was told that the police officers were looking for him. He went to Libode police station on the following day. He was accompanied by a certain person as it was suggested at his home so that they be certain that he has reached

Libode police station.

He denies wearing clothes with blood stains. His evidence is that the investigating officer can be in a better position to explain which clothes had blood stains.

He disputes that he met with the deceased on the night of the incident. His evidence is that he was no longer in love relationship with N[...] . They parted ways because her mother and sister did not approve their relation. He admitted killing the deceased to Lt Colonel Mdepha because he was subdued to pressure. He showed Captain Nqunqa the knife as the weapon he used in killing the deceased because of the same reason. He was threatened to be subjected to more torture.

[19] The accused was also extensively cross examined by the state.

Thereafter, the case was postponed for three occasions for the defence witness which did not come to court. The court after considering the submissions by the defence about the non-attendance of the defence witness ruled that the matter proceed. The defence case was then closed

ADRESS ON MERITS BY

THE STATE AND DEFENCE

[20] The state argued that the guilt of the accused has been proved beyond reasonable doubt. The accused person be found guilty as charged on all counts. That the court must take into consideration the confession, pointing out by the accused as well as the DNA results which links the accused to the commission of the offence. The version of the accused must be rejected, it is full of improbabilities and is not reasonable possible true. The accused had intentions to kill both deceased persons. He used a dangerous weapon, that is, a knife in committing the offence.

[21] The defence submits that accused person the accused bears no onus to prove his innocence. The duty rests on the state to prove its case beyond reasonable doubt. There is no evidence whatsoever led by the state in respect of Count 1, Robbery. In relation with Murder charges the court must consider the reliability of the confession and pointing out made by the accused. That the court must take into consideration the cause of death and the injuries sustained by both deceased which are inconsistent with the stabbing as alleged in the indictment. Defence also argued that the blood which was found in accused clothes can be known by Sgt Mnukwa who took accused’s clothes at his home. It is further submitted that the killing of the deceased in count 3 by accused, if court finds so, do not fall under section 51(1) of Act 105 of 1997 as there is no evidence of planning or premediated. This happens at the spur of the moment. The court must consider the inconsistences in the confession statement and the pointing out as to who was first stabbed.

Onus of proof

[22] The longstanding principle in criminal law and the law of evidence is that the guilt of the accused must be proved by the State and that the onus rests on the State to prove the guilt of the accused beyond reasonable doubt. In S v T [2] the importance of this principle was stated as follows: -

“The State is required, when it tries a person for allegedly committing an offence, to prove the guilt of the accused beyond a reasonable doubt. This high standard of proof – universally required in civilised systems of criminal justice is a core component of the fundamental right that every person enjoys under the Constitution……….

When a court finds that the guilt of an accused has not been proved beyond reasonable doubt, that accused is entitled to an acquittal, even if there may be suspicions that he or she was, indeed, the perpetrator of the crime in question.”

EVALUATION OF THE

EVIDENCE

[23] The duty of the Court is to evaluate the evidence in its totality to establish whether the state has met the required standard of proof

[24] The principle in evaluating evidence was clearly stated by the Supreme Court of Appeal in S vs Chabalala [3]

“the correct approach in evaluating evidence is to weigh up all elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities, and having done so, decide whether the balance weighs so heavily in favour of the state so as to exclude any reasonable doubt about the accused guilt. Of course, this cannot be done in isolation, but the court must consider the totality of the evidence before it to come to a just decision. It is therefore imperative to evaluate all the evidence and not to be selective in determining what evidence to consider.

[25] The Supreme Court of Appeal in S vs Chabalala (supra)amplified as follows, the “holistic “approach required by a trial court in examining the evidence on the question of guilt or innocence of an accused:

4: “court when evaluating the evidence in totality does not have to be convinced that every detail of an accused’s version is reasonable true in substance the court must decide the matter on the acceptance of that version. Of course, it is permissible to test the accused’s version against the inherent probabilities, but the accused’s version cannot be rejected merely because it is improbable, it may only be rejected on the basis of inherent probabilities if it is said it is so improbable that it cannot be reasonably possible true,”

[26] A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. See – S vs Trainor [4]

[27] It is common cause that the deceased in Count 2 &3 were stabbed to death on the night of the 3rd June 2022.

The issue in dispute is whether the accused is the one who committed the crime of murder of the deceased persons.

[28] The State in proving its case relied on the confession, pointing out and DNA results, which is circumstantial evidence. The issue to be decided is whether the court should convict the accused person based on confession, pointing out and DNA.

[29] The evidence before court is circumstantial in nature. In S vs Reddy &Others[5], it was stated as follows:”

“In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in Rex v Blom[6], where reference is made to two cardinal rules of logic which cannot be ignored. These are firstly that the inference sought to be drawn must be consistent with all the proved facts and secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.”

[30] In S vs Ntsele[7] , it was held that the court was required to consider every fragment individually. It was the cumulative impression, with all the pieces of evidence made collectively, that had to be considered to determine whether the accused’s guilt had been established beyond a reasonable doubt.

[31] The court must make certain inferences as to his involvement from the set of facts presented before it. This form of inferential reasoning is based upon the available circumstantial evidence.

I am mindful that the cardinal rule is whether on conspectus of the evidence, it is established beyond reasonable doubt that the accused committed the said offences.

The DNA results linked the accused to the commission of the offence. The blood samples of both deceased persons positively match with the blood stains found on accused track top.

The detailed nature of confession statement given by the accused to Colonel Mdepha showed that he had personal knowledge of the events. The statement made by the accused amounted to unequivocal admission of guilt.

In relation to the pointing out, Captain Nqunqa compiled a detailed statement of the events pointed by the accused to him. He did not know where the offence was committed. He did not know the accused homestead. He was led by the accused to his home pointing the knife which he used during the commission of the offence.

Accused alibi defence

[32] In Maila v The State[8] , the SCA referring to the case of Tshiki v S[9] held:

“It is trite that an accused is entitled to raise any defence, including that of an alibi-that at the time of the commission of the crime, they were not at the scene of the crime but somewhere else. They can also lead evidence of a witness(es) to corroborate them on their whereabouts at the critical time. Nevertheless, it is trite that an accused person who raises defence is under no duty (as opposed to that of the state) to prove his defence. If the defence is reasonably possible true, he is entitled to be discharged and found not guilty.”

The onus rests on the state to prove his alibi is false. The effect of falseness of an alibi on accused’s case is to place him in a place as if he never testified at all.

[33] In assessing the evidence, a court must in analysis look at the evidence holistically in order to determine whether the guilt of the accused is proved beyond reasonable doubt. The same principles apply when an alibi is relied upon by the accused.

[34] The acceptance of the evidence on behalf of the state cannot itself be sufficient basis of rejecting the alibi defence. Something more is required. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating the accused is true.

[35] In S v Musiker [10]it was stated that once an alibi is raised, the alibi has to be accepted, unless it can be proven that it is false beyond reasonable doubt.

[36] In S vs Burger and others[11] , it was stated that it is worth noting that the mere lies for an alibi defence or for alibi evidence does not warrant “punishment for untruthful evidence”. However, where an alibi is presented and it contradicts evidence presented before court, and the alibi later turns to be a lie (or falsehood), the lie together with the other evidence of the accused as a whole may point towards his or her guilt.”

CONCLUSION

[37] The state in relation to Count No 3, murder of N[...] invoked the provisions of section 51(1) Act 105 of 1997 (part 1 of schedule 2 paragraph (b) (ii) which provides that:

“murder, when the victim was a person who has given, or was likely to give material evidence with reference to any offence referred to in schedule 1 of the Criminal procedure Act 51 of 1977, at criminal proceedings in any court,” attracts applicability of section 51(1) of Act 105 of 1997.

The evidence before court does not suggest that the offence committed by the accused was planned or premeditated. This happened out of jealousy at the spur of the moment. The accused by chasing the deceased whilst running away was not planned.

[38] The DNA evidence, together with the confession and pointing out is sufficient to prove beyond reasonable doubt that the accused is the one who committed the said offences.

[39] In the circumstances the court accepts the version of the state and rejects the version of the accused as it is not reasonable possible true. Accused was not an impressive witness. The accused did unlawfully and intentionally rob complainant by snatching her beer. Accused inflicted stabbed wounds on both deceased and cut their throats with intentions to kill them. He was in possession of dangerous weapon, the knife, which he used it during the commission of the offence.

[40] Therefore, the accused is found guilty as charged on the following:

Count 1: Robbery

Count 2: Murder in circumstances which the provisions of section 51(2) Act 105 of 1997 applies.

Count 3: Murder in circumstances which the provisions of section 51(2) Act 105 of 1997 applies.

Count 4: Possession of Dangerous weapon

P.C.N. Mjame

Acting Judge Mthatha High Court

Appearances: Mr Sakwe

(Accused’s Counsel)

Legal Aid South Africa

MTHATHA

Mr Methuso

(For the State)

Director of Public Prosecutions

FORTGALE

Dates of hearing : 3,4,5,6 ,10 ,13, 14 June 24

Date delivered : 17 July 24

[1] Criminal Procedure Act 51 of 1977

[2] 2005(2) SACR 318(E)@ paragraph 37

[3] 2003(1) SACR 134 SCA

[4] 2003 (1) SACR 35 SCA

[5] 1996 (2) SACR 1 AD @paragraph 8

[6] 1939 AD 188 @ 202-203

[7] 1998 (2) SACR 178 SCA

[8] (429/2022) [2023] ZASCA 3

[9] [2020] ZASCA 92 SCA

[10] 2013(1) SACR 517 SCA @ paragraph 15 -16

[11] 2010(2) SACR (1) @ paragraph 30