Court name
High Court Main Division
Case number
CC 30 of 2019
Title

S v Jacobs (CC 30 of 2019) [2021] NAHCMD 53 (18 February 2021);

Media neutral citation
[2021] NAHCMD 53
Case summary:

Criminal Procedure – The implications of admissions recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977 – Such admissions is conclusive proof of the admitted fact.

Evidence of a single witness – Such evidence need not be satisfactory in every respect – Provided that the Court can find at the end of the day that even though there are short-comings in the evidence of a single witness, the Court is satisfied that the truth has been told.

 

Headnote and holding:

The accused was indicted on one count of murder, on the second count the accused stood charged with rape in contravention of s 2 (1) a read with ss 1 − 3 and 5 − 8 read with s 94 of the Criminal Procedure Act 51 of 1977.

 

The accused also faces charges of robbery with aggravating circumstances on the 3rd count as well as a charge of violating a dead human body on the fourth count.  Further the accused faces charges of Housebreaking with intent to steal and theft on the fifth count and on the sixth and seventh counts accused was charged with the crime of arson.

 

Accused pleaded guilty to the charge of murder and violating of a dead human body after which the Court found him guilty as charged and was convicted on this own plea of guilty.

 

Admissions were recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977 which became conclusive proof of the facts admitted.

 

The state called only one single witness whose testimony was found to be satisfactory in all material facts.  Consequently the accused was convicted on all the charges including the competent verdicts after considering all the evidence in its totality.

Coram
Usiku J

 

 

 

REPORTABLE

 

 

 

    REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

                                                                                                               Case No: CC 30/2019 

 

THE STATE                                                                                                                              

 

versus

 

ADRIAAN SYLVANUS JACOBS

 

Neutral citation:  S v Jacobs (CC 30/2019) [2021] NAHCMD 53 (18 February 2021)

 

Coram:          USIKU, J

 

Heard:            28 May 2020; 19 October 2020; 21 October 2020; 16 November 2021; 4 December 2020; 25 – 27 January 2021

                       

Delivered:     18 February 2021

 

Flynote:         Criminal Procedure – The implications of admissions recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977 – Such admissions is conclusive proof of the admitted fact.

 

Evidence of a single witness – Such evidence need not be satisfactory in every respect – Provided that the Court can find at the end of the day that even though there are short-comings in the evidence of a single witness, the Court is satisfied that the truth has been told.   

 

Summary:     The accused was indicted on one count of murder, on the second count the accused stood charged with rape in contravention of s 2 (1) a read with ss 1 − 3 and 5 − 8 read with s 94 of the Criminal Procedure Act 51 of 1977.

 

The accused also faces charges of robbery with aggravating circumstances on the 3rd count as well as a charge of violating a dead human body on the fourth count.  Further the accused faces charges of Housebreaking with intent to steal and theft on the fifth count and on the sixth and seventh counts accused was charged with the crime of arson.

 

Accused pleaded guilty to the charge of murder and violating of a dead human body after which the Court found him guilty as charged and was convicted on this own plea of guilty.

 

Admissions were recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977 which became conclusive proof of the facts admitted.

 

The state called only one single witness whose testimony was found to be satisfactory in all material facts.  Consequently the accused was convicted on all the charges including the competent verdicts after considering all the evidence in its totality.

                                                 


ORDER


Count One    :           Guilty – Murder with direct intent.

Count Two    :           Guilty – Rape.

Count Three :           Guilty – Theft.

Count Four   :           Guilty – Violating a dead human body.

Count Five    :           Guilty – Theft.

Count Six      :           Guilty – Arson.

Count Seven            :           Guilty – Arson.


JUDGMENT


 

USIKU J:      

 

[1]        The accused who was a minor aged 15 years at the time of the alleged incidences stood charged with several counts.  His guardian had been warned to attend the court proceedings throughout and complied.  The court proceedings were held in camera.                

 

[2]        Ms Meyer appeared on behalf of the state whilst Mr Samaria represented the accused on instructions from the Directorate of Legal Aid.

 

[3]        On the first count the accused stood charged with a crime of murder.  On the second count accused faces charges of Rape read with s 94 of the Criminal Procedure Act 51 of 1977.

           

[4]        Accused also faces charges of Robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977 on the third count. Whilst on the fourth count accused is further charged with violating a dead human body.

             

[5]        Furthermore, the accused faces charges of House Breaking with intent to steal and theft on the fifth count.  On the sixth and seventh counts accused is charged with the crime of Arson, alternatively he was charged with the crime of Malicious Damage to property.  

 

[6]        After the charges were put to the accused he tendered a guilty plea on the murder charge as well as on the charge of violating a dead human body and was convicted on his plea of guilty on the two charges which are in respect of counts one and four.

 

[7]        He however pleaded not guilty to the remaining charges as set out in the indictment.  It is common cause that accused’s plea of guilty statement in terms of s 112(2) of the Criminal Procedure was prepared in respect of the first and the fourth count and handed in and form part of the court proceedings.  The said statement is quoted verbatim and reads as follows:

 

  1. I, the undersigned,

 

ADRIAAN SYLVANUS JACOBS

 

Hereby state as follows:

 

That I am the accused as depicted in the charge sheet.

 

  1. I make this statement freely, voluntarily and without any force, threat or undue influence.

 

  1. I understand the allegations contained in the charge(s) preferred against me.

 

  1. I am fully aware of my rights as explained to me by my legal practitioner of record

 

    1. That I am presumed innocent until my guilt has been proven beyond a reasonable doubt.

 

    1. That I cannot be compelled to give self-incriminating evidence and that if I so wish can remain silent and do not have to testify during these proceedings.

 

  1. I confirm that the pleas of guilt are done out of my own free will.

 

  1. I further confirm that I am fully aware of the consequences of the pleas, namely that I can be convicted on the charges preferred against me which I have pleaded guilty to, without state having to call witnesses or tender any evidence to the preferred charges against me.

 

  1. I hereby plead as follows to the charges preferred against me:

 

AD COUNT 1

 

  1. I plea guilty to the charged of Murder.

 

  1. In amplification of my plea of guilty to the charge of Murder, I wish to state as follows:

 

    1. In that during the period 24-25 September 2018,

 

    1. And at or near Rehoboth,

 

    1. In the district of Rehoboth,

 

    1. I did unlawfully and intentionally kill Sarah Jagger, a 57 year old female person.

 

  1. The following circumstances led me to commit this offence are as follows:

 

It was early in the night.  I had visited a friend by the name Jorsie in the Bahnhof location.  Jorsie and I had been smoking dagga at his place.  After some time I decided to go home.  On my way walking towards my house where I saw a woman, Sarah Jagger (the deceased), walking in a direction away from me.  While I was walking something told me to grab the deceased.  I then decided to grab the deceased tightly from behind with both my arms.  The deceased was trying to loosen herself from my grip.  She swore at me repeatedly, but could not loosen herself from me.  We walked onto the gravel road where she fell.  I grabbed the deceased again from behind and we went over the gravel road.  I let go of the deceased and she crawled under the fence and started to run away from me.  I then picked up stones and started to throw her with the stones.  I also the crawled under the fence and picked up stones again and was throwing her with those stones.  I saw that those stones hit the deceased but I still proceeded to throw the deceased.  The deceased fell onto the ground, and when I saw that deceased was not moving, I left deceased there and went home.

 

  1. I knew that my actions of picking up stones and throwing the deceased as I did would result in severe injury and possibly cause the death of the deceased Sarah Jagger, I none the les reconciled myself with that appreciation and the manner that I have acted.

 

AD COUNT 4

 

  1. I plea guilty to the charge of violating a dead human body.

 

  1. In amplification of my plea of guilty to the charge of violating a deaf human body, I wish to state as follows:

 

    1. In that during the period 24-25 September 2018,

 

    1. and at or near Rehoboth,

 

    1. in the district of Rehoboth,

 

    1. I did unlawfully and intentionally violate the dead human body of Sarah Jagger by cutting off/amputating her foot and/or by stabbing her body with a sharp object.

 

  1. The following circumstances led me to commit this offence are as follows:

 

The following morning after waking up and having finished drinking tea.  I decided to walk back to the place where I left the deceased whom I had thrown with stones the previous night.  When I arrived there the deceased was already dead, as she was not moving.  I then took out the knife I had with me and inflicted multiple stab wounds on her body.  After that I then cut her right foot. I then put the foot in the plastic bag and then threw the plastic bag onto the gravel road.

 

  1. I know that my actions as aforementioned were wrongful and unlawful and if found guilty by a court of law, that I would be punished.

 

  1. I deeply regret what I have done and pray for mercy from this Honourable Court in my sentencing.

 

  1. I verily believe the advice of my legal aid counsel of record to be true and correct.

   

[8]        In addition thereto formal admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 were recorded in respect of counts two, three, five and six and confirmed by the accused after a through explanation in which the accused admitted to the following:

 

  1. I, the undersigned,

 

ADRIAAN SYLVANUS JACOBS

 

Hereby state as follows:

 

That I am the accused as depicted in the charge sheet.

 

  1. I make the following admissions to be preferred charges against freely, voluntarily and without any force, threat or undue influence.

 

  1. I understand the allegations contained in the charge(s) preferred against me.

 

  1. I am fully aware of my rights as explained to me by my legal practitioner of record.

 

    1. That I am presumed innocent until my guilt has been proven beyond a reasonable doubt.
    2. That I cannot be compelled to give self-incriminating evidence and that if I so wish can remain silent and do not have to testify during these proceedings.

 

  1. I confirm that the admissions are done out of my own free will.

 

  1. I further confirm that I am fully aware of the consequences of the admissions, namely that if these admissions are formally admitted into the record that I can be convicted on the charges preferred against me which I have pleaded to, without the state having to call witnesses or tender any evidence to the preferred charges against me.

 

  1. I hereby make the following formal admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 to the charges preferred against me.

 

AD COUNT 2

 

  1. I admit that I have pleaded not guilty to the charge preferred against me.

 

  1. I wish to make the following admissions in respect of contravening s 2(1)(a) read with s 1-3 of Act 8 of 2000 – Rape and read with s 94of Act 51 of 1977.

 

  1. That during the period 24 – 25 September 2018 and or near Rehoboth in the district of Rehoboth, I did unlawfully and intentionally commit a sexual act with Sarah Jagger (the complainant) by inserting my finger into the vagina of the complainant.  At the time I was inserting my finger into the vagina of the complainant I was applying physical force to the complainant.

 

  1. The following is the circumstances that led me to commit his offence:

After having grabbed the women Sarah Jagger from behind and were walking over the gravel road.  The women Sarah Jagger fell, I decided to pull up her dress, while she was still struggling with me.  I then put my fingers inside her vagina.

 

AD COUNT 3

 

  1.  I admit that I have pleaded not guilty to the charge preferred against me Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977.

 

  1. I wish to make the following admissions in respect of the charge Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977.

 

  1. In that during the period 24 – 25 September 2018 and at or near Rehoboth in the district of Rehoboth I picked up one bag containing one packet of sausages, two packets of meat and two litres wine/liquor.

 

  1. I found the bag lying on the road and picked it up and took it to my home.

 

  1. I do not dispute that the bag that I picked up belonged to Sarah Jagger and/or Paul Van Rhyn.

 

AD COUNT 5

 

  1. I admit that I have pleaded not guilty to the charge preferred against me Housebreaking with the intent to steal and theft.

 

  1. I wish to make the following admissions in respect of the charge Housebreaking with the intent to steal and theft.

 

  1. In that during the period 24 – 25 September 2018 and at or near Rehoboth in the district of Rehoboth I stole nine spoons and/or two forks and/or a gas lighter and/or a screw driver.

 

  1. I do not dispute that the said items I stole belonged to Keith Granvelle Swartz.

 

  1. The circumstances that led me to commit this offence are as follows:  I came at the house/zinc shack belonging to Keith Gravalle Swartz which doors was opened, I entered into the house and stole the items in the house.

 

  1. I admit that I have pleaded not guilty to the charge preferred against me Arson.

 

AD COUNT 6

 

  1. I wish to make the following admissions in respect of the charge Arson.

 

  1. In that during the period 24 – 25 September 2018 and at or near Rehoboth in the district of Rehoboth I unlawfully and intentionally set fire to a house/zinc shack the property of or belonging to Keith Graville Swartz and burned and destroyed or damaged the said house/zinc shack and a couch, 3 matrasses, five pillows, one iron bed and one pair of boots.

 

  1. The circumstances that let me to commit this offences are as follows:  I came at the house/zinc shack belonging to Keith Granville Swartz which door was opened.  I then set the house on fire with the match I had in my pocket.

 

The accused accordingly appended his signature on the formal admissions recorded which were handed in and became conclusive proof of the facts admitted.

 

[9]        The following exhibits were also handed in by agreement between the state and the defence.  These are: 

 

  1. The indictment as                                                                -           Exhibit “A”

 

  1. The Statement in terms of s 112(2) as                             -           Exhibit “B”

 

  1. Formal admissions made in terms of s 220 of the Criminal Procedure Act 51 of 1977                                                                                -           Exhibit “C”

 

  1.   The Pre-Trial Memorandum as                                        -           Exhibit “D”

 

  1. Accused’s Reply to the Pre-Trial Memorandum as       -           Exhibit “E”

 

  1. Proceedings from the District Court as                            -           Exhibit “F”

 

  1. Photo plan compiled by Detective Sergeant Witbeen on CR No.: 161/9/2018 as                                                                                       -           Exhibit “G”

 

  1. A Photo plan on the Post-Mortem examination compiled by Warrant Officer Tjitombo of the Forensic Pathology marked as                  -           Exhibit “H”

 

  1. Original Post-Mortem examination report on the deceased’s body compiled by Dr Kabanje, Chief Forensic Medical Officer on the 28 September 2018                                                                                                     -           Exhibit “J”

 

  1. A report by authorised medical practitioner on the completion of a Medico-Legal examination as                                                                    -           Exhibit “K”

 

  1. A report on the application for scientific examination from the Scene of Crime Unit Report 2246/2018/G-R1 as                                     -           Exhibit “L”

 

  1. Photo plan on the pointing out of a scene of crime compiled by Detective Chief Inspector J Mouton as                                                     -           Exhibit “M”

 

  1. A witness statement of Granville Keith in respect of counts six and seven respectively as                                                       -           Exhibit “N”

 

[10]      The defence had no qualms with the exhibits having been handed in to form part of the evidence before Court.

 

[11]      Having handed in the exhibits referred to the state only called one witness to testify on its behalf and closed its case thereafter.     

 

[12]      It is now common cause that the accused pleaded guilty to counts one and four which are charges of murder and the violation of a dead human body, as a result of which the court found him guilty as charged and convicted him upon his own plea of guilty.

           

[13]      What remained where charges of Rape in Contravention of s 2(1)(a) read with s 1 – 2, and 3 of the Combating of Rape Act 8 of 2000 read with the provisions of s 94 of the Criminal Procedure Act 51 of 1977.  Accused admitted to have inserted his finger into the vagina of the deceased though denied to have done so on diverse occasions.

 

[14]      In order to prove that a sexual act was committed the state must prove that there was a sexual act, which is defined under s 1(1)(b) of the Combating of Rape Act (a) as the:

            “insertion of any other part of the body of a person or of any part of the body of animal or of any object into the vagina or anus of another person, expect where such insertion of any part of the body of a person or of any object into the vagina or anus of another person is consistent with sound medical practices, carried out for proper purposes.”

 

[15]      Accused’s admission to have inserted his finger into the deceased’s vagina was not done for purposes of sound medical practices.  Evidence before court infact indicates the contrary as exhibit “G” the deceased’s panty which was forwarded to National Forensic Science Institute for analysis purposes tested positive for human semenogelin using an immunochromatographic essay.  That would mean that the accused must have committed a sexual act with the deceased by inserting his penis into her vagina and not his finger as claimed by him. 

 

[16]      The state conceded to the fact that there was no evidence to prove that the sexual intercourse had taken place on diverse occasions which concessions are correctly made.                               

 

[17]      With regard to the charges on the third count in which the accused is charged with the crime of Robbery with Aggravating Circumstances as defined in s 1 of the Criminal Procedure Act.  Accused made admissions to the effect that he picked up the bag containing food stuffs next to the road.  The bag belonged to the deceased.  He therefore could not have been entitled to take the bag’s contents.  In the absence of any explanation on his part the only reasonable inference to be drawn from his conduct is that by removing the deceased’s property he intended to deprive the owner of her bag her right thereof.  The deceased’s properties were recovered from the accused, upon his arrest and such conduct would indeed constitute a crime of theft which is a competent verdict on a charge of Robbery with Aggravating Circumstances.

 

[18]      Furthermore, the state conceded that it did not adduce sufficient evidence in order to prove a charge of Housebreaking with intent to steal and theft.  There must be proof of a forceful entry into the house of one Keith Swartz in order to prove the offence of housebreaking with intent to steal and theft, or a forceful break in itself.  That has not been proven by the State.  However, the accused who was found in recent possession of the properties stolen from the said house could still be convicted on a charge of theft, that being a competent verdict on the charge of housebreaking with intent to steal and theft.

 

[19]      It is common cause that admissions were recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977 which is conclusive proof of the admitted facts and it could be relied upon by a Court of Law.

 

[20]      It is therefore plain from the wording of s 220 of the Act, that the admissions so recorded is conclusive proof of the admitted facts.  Thus the admissions made relieved the state of the responsibility to prove the facts.  Accused admitted to have intentionally set the shack on fire though he claimed not to have foreseen the possibility of the adjacent shack also getting burned as a result from the first shack he had set alight.

  

[21]      Evidence by Mr Witbeen is that the two shacks are less than 10 metres apart and it could not have been possible for a tree between them to have escaped being burned if the fire had to spread over to the next shack.  Infact the defence finally conceded that accused ought to have foreseen the possibility of the fire spreading over to the next shack which was close to the one he admitted to have put alight.

 

[22]      Coming to issue of a single witness, it is trite that the Criminal Procedure Act authorises a conviction on the strength of evidence from a single witness.  Thus in the case of S v HN[1], the Court had the following to say regarding evidence of a single witness.

            ‘Evidence of a single witness need not be satisfactory in every respect as it may safely be relied upon even where it has some shortcomings in the evidence of a single witness the court is satisfied that the truth has been told.  Though it is a well-established rule of practice that where a witness gives evidence as a single witness, that such evidence must be corroborated or need to be approached with caution.’ 

 

[23]      Hence this Court is alive to the application of the cautionary rule with regard to the evidence of Mr Witbeen as a single witness.  The accused was linked to the commission of the crimes by the witness through the shoe tracks found on the scene of crime which corresponded with the type of the shoes the accused was found with upon his arrest.  Such evidence was never placed in dispute by the accused.       

 

[24]      Articles stolen from the deceased were found in the accused’s possession and that fact too was never disputed by him as he opted at the close of the state’s case to remain silent and called no witness to testify on his behalf.    

 

[25]      It is trite that an accused has a right to exercise his Constitutional right to remain silent and that an accused need not to give evidence which will incriminate him.  However, where the state had produced prima facie evidence against an accused, he will have a case to answer.  The right to remain silent therefore does not preclude the Court from drawing adverse inferences when an accused has failed to testify.

 

[26]      It is further common cause that there were no eye witness, however although there were no eye witnesses to the actual commission of the alleged crimes by the accused, it is now settled law that in the assessment of circumstantial evidence, one needs to be careful not to approach such evidence upon piece-meal basis, but that the evidence needs to be considered in its totality.  Therefore, when regard is had on all the evidence adduced as well as the accused’s own formal admissions, it leaves this Court with no doubt that accused committed the offences of murder and rape on first and second counts, theft on the third count, violating a dead human body on fourth count as well as arson on sixth and seventh counts respectively.  Accordingly he is convicted on those counts.

 

Count One    :           Guilty – Murder with direct intent.

 

Count Two    :           Guilty – Rape.

 

Count Three :           Guilty – Theft.

 

Count Four   :           Guilty – Violating a dead human body.

 

Count Five    :           Guilty – Theft.

 

Count Six      :           Guilty – Arson.

 

Count Seven            :           Guilty – Arson.

           

 

 

 

 

----------------------------------

D N USIKU

Judge

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

STATE           :                                                Mrs Meyer

Office of the Prosecutor-General

 

ACCUSED    :                                                  Mr Samaria

                                                   (Instructed by Directorate of Legal Aid)

                                         

                                                              

 

 

 

 

 

[1] S v HN 2010 NR 429.