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[2023] ZAECMHC 6
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S v Kesa and Another (CC19/2020) [2023] ZAECMHC 6 (13 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE DIVISION: MTHATHA]
CASE NO. CC19/2020
In
the matter between:
THE
STATE
vs
THOBANI
KESA
Accused No.1
NTEMBEKO
KESA
Accused No.2
JUDGMENT
JOLWANA
J
:
Introduction.
[1]
Accused no.1, together with his brother, Ntembeko Kesa were charged
with arson and four counts of murder following the burning
of the
Kesa homestead at Teenbank in Sterkspruit on 22 July 2018. The
deceased in count 1 is the sister of the accused and
the deceased in
count 2 is the daughter of the deceased in count 1 and therefore the
niece of the accused. The deceased in
counts 3 and 4 are the
father and mother of the accused. The accused and his brother
pleaded not guilty to all the charges
but did not tender any plea
explanation. After the case for the prosecution was closed
Ntembeko Kesa was acquitted of all
charges in terms of section 174 of
the Criminal Procedure Act 51 of 1977 (the Act). However,
accused no.1, Thobani Kesa’s
similar application was refused by
this Court. For convenience, I shall in this judgment, continue
referring to Thobani Kesa
and Ntembeko Kesa as accused no.1 and
accused no.2 respectively.
[2]
The case for accused no.1 was opened with him giving evidence and
testifying in his own defence. It behoves of this Court,
now
having heard the case for the accused, to assess all the evidence
presented in this matter and decide whether or not the guilt
of
accused no.1 has been proved beyond reasonable doubt. The State
relied on circumstantial evidence and on the basis thereof
Counsel
for the State submitted that the guilt of accused no.1 has been
proved beyond reasonable doubt.
The
evidence of the State.
[3]
The murder charges in this case are backgropped by what appears to
have been evidently very seriously strained relations between
the two
accused and their parents, the deceased in counts 3 and 4. According
to the evidence of Mr William Kesa, there were allegations
of the
deceased’s money which was meant to be used to buy building
material having been misused and squandered by the two
accused.
At some point he was told by the late Mqondisi Kesa, the deceased in
count 3 who was his brother, that he intended
obtaining a protection
order against his two sons. It was that protection order which
led to the accused having to leave
their home in which they hitherto
lived together with all the deceased. They went to stay at
Kromspruit, some 10 kilometres
or so from Teenbank. To his
knowledge there was no body living at that homestead at the time save
for the accused’s
paternal uncle’s young daughter,
Sinentlahla Kesa.
[4]
Mr William Kesa further testified that on 22 July 2018 at about 05:00
in the morning he received a report that the deceased’s
homestead was on fire. He drove to the deceased’s
homestead where he found the place engulfed in smoke and it was
black. He was told that the fire started at about 02:00 in the
morning. The deceased’s homestead was burnt down
and the
deceased were so badly burnt that they were beyond recognition.
However, he was able to identify them as they were
all well known to
him. What shocked them as the family and was strange was that
they had thought it was only the burning
of the structure in that
fire that had occurred and the deceased’s death. But
during the cleansing of the burned structure
a sponge was discovered
which was sopping blood.
[5]
Police officers came to the crime scene and after doing their work
and after the bodies had been removed they were allowed to
start
cleaning up the place. At the time the cleaning was taking
place the accused had not yet arrived. They were still
at his
elder brother’s homestead in Kromspruit where they were
staying. They were phoned and informed about the incident
and
told to come. However, they had not arrived by sunrise.
His family and that of the accused’s mother’s
family from
the Tiyane clan were mind boggled about the incident. This was
because as the incident occurred on 22 July 2018,
they were aware
that the accused were required to be in court on 27 July 2018 about
the protection order which had been obtained
by their parents against
them.
[6]
They decided to drive to Kromspruit to fetch the accused persons from
Kromspruit and brought them home in Teenbank where they
were
questioned about the incident. After the accused were
questioned it was decided to go back to Kromspruit where they
stayed. The police also went there as part of their
investigations. The police searched the house after which they
proceeded to a toilet that was at the back of the house. The
police found an overall with blood stains in the toilet.
It
appeared that the overall had been washed but the blood stains had
not washed off properly. When the accused were asked
about the
overall, they said that they did not know whom it belonged to and
that it was a bigger size for them. Eventually,
they were
arrested by the police.
[7]
Under cross-examination Mr William Kesa testified that the accused
left their homestead during July 2018 but before the date
of the
incident. It was put to him that accused no.1 denied receiving
a call informing him about the incident but admitted
being fetched by
him. Mr William Kesa testified that the accused were called and
did say that they would come. They
waited for the accused to
arrive. It was only upon realizing that they were not coming
and the time was passing that they
decided to fetch them. He
further testified that at the time the cleaning took place the
accused were present as they had
already fetched them. He
however, denied the accused’s version that they participated in
the cleaning saying that the
cleaning was done by the people from the
funeral parlour. It was further put to Mr William Kesa that he
was the one who asked
accused no.1 to clean the floor. He
denied this saying that accused no.1 was not telling the truth
insisting that they did
not participate in the cleaning process.
[8]
After the sponge was found the police were called and came back
again. He also testified that the overall was found inside
the
toilet but not in the toilet pit. He also testified that he had
never seen accused no.1 wearing that overall before the
incident.
It was the bottom part of the overall and had blood stains. He
also confirmed that police took away a tracksuit
pants which it
appeared, he was referring to it in his evidence about an overall.
He also testified that he was in the house
when the tracksuit pants
was found and that his evidence about it being found in the toilet
but not in the toilet pit was how he
was told. He was in the
house when the police found it in the toilet.
[9]
This brings me to the evidence of sergeant Mda, the next witness for
the State and the investigating officer of the case.
He
confirmed attending at the crime scene in the Kesa homestead at
Teenbank on 22 July 2018. He found the bodies of the deceased
persons in a two roomed flat structure that was in the process of
being extended. The bodies were so badly burned that some
body
parts or limbs were disremembered. The Local Criminal Record
Center officers who were at the crime scene did their work
after
which the bodies were removed by people from the forensic pathology
unit. He noticed that the crime scene had water
because members
of the community had tried to extinguish the fire. After the
bodies were removed, he and his colleagues also
left the crime
scene. However, on the same day at about 17:00 he received a
call from a Mr Socatsha requesting them to return
to the crime scene
because as people were cleaning the place they noticed some blood in
the crime scene.
[10]
He, together with one of his colleagues, Mr Belebesi returned to the
crime scene where they were showed the spot at which blood
had been
noticed. He saw that there was blood which was on a burnt mat
or floor rug. When he tried to lift up the floor
rug or mat it
tore off as it had also been burnt and he got just a piece of it.
As he was doing this he was wearing protective
hand gloves. He
put that piece of floor rug in a plastic bucket together with other
things that were wet. He put those
items in the plastic bucket
because they were too wet for a forensic bag. He was shown the
two accused persons who were not
there earlier when he had attended
to the crime scene. He spoke to them and as he was speaking to
them he noticed that the
strings of the hood of the tracksuit top
accused no.1 was wearing had blood stains. He asked the accused
persons where they
were staying and they told him that they stayed at
Kromspruit. He asked them when was the last time they were at
their homestead
where the incident occurred. They said that
they were last there three weeks earlier. They also told him
that they
left their home because of a misunderstanding with their
parents which led to them being expelled from home. Accused
no.1
also told him that they were the ones who built the incomplete
structure at their home and that their mother had given them money
for the building of the structure which they squandered. This
led to their expulsion which was why they left home to stay
at
Kromspruit.
[11]
Because of the blood stains that he observed on the hood strings of
accused no.1’s tracksuit top, he asked him to give
it to him.
Accused no.1 took off the tracksuit top and gave it to him. He
then put it in a sealed evidence bag in the
presence of accused
no.1. The serial number of that evidence bag was PA4002561679.
He then asked the accused to come
with him to their place of
residence at Kromspruit. They agreed and he then put them in a
police van. On their arrival
the accused opened for them.
Some family members also came along. He requested the family
members to remain outside
so that the police could do their work
properly. They searched inside the house and found a pair of
jean trousers which had
blood stains. After they had finished
searching the house, they searched in the premises and also went to a
pit toilet that
was in that homestead.
[12]
He peeped through the toilet pit and saw a nike tracksuit pants which
he retrieved from the toilet pit. The upper portion
of the
tracksuit pants was still dry but its bottom was wet. It was
clear to him that the wetness was still fresh as if it
had not been
there for a long time. It also had some blood stains. He
decided to arrest the accused persons.
He also took the pair of
jean trousers and the tracksuit pants with him to the police
station. Because the lower part of
the tracksuit pants was wet,
he dried it and thereafter packed those exhibits in evidence bags.
In all this process he kept
them safe from contamination by ensuring
that they remained in his custody and were not tampered with.
He also requested
the forensic pathologist to take some samples from
the bodies of the deceased. When he received those samples, he
sealed
them in evidence bags and later took them to their laboratory
in Gqeberha together with other exhibits after he had entered all
of
them in their SAP13 exhibit register.
[13]
The DNA kits which he had received from the forensic pathologist were
sealed in evidence bags number PA4007561855, a blood
kit was in bag
number PA4001790278 and another blood kit which was in bag number
PA4002561856. The grey tracksuit pants recovered
from the
toilet pit at Kromspruit was in sealed evidence bag number
PA4000876232. The brown jacket was in evidence bag number
PA3000344503. This jacket was recovered in the house at
Kromspruit. One ceaser box of cigarettes was in bag number
PA6001816619 and two cigarette buts which were in bag number
PA6001816628. The tracksuit top which he had taken from accused
no.1 was sealed in evidence bag number PA4002561679. The pair
of jean trousers was sealed in evidence bag number PA4002561853.
It was also recovered from the house in Kromspruit. There was
also a blood kit which was sealed in bag number PA4001825929.
All these exhibits were put in one big sealed evidence bag with
serial number PAB000165247 which is the one referred to in the
acknowledgment of receipt from the laboratory. He took all
these items to their laboratory in Gqeberha. All these exhibits
are listed in a copy of the SAP13 register which was entered into the
record as an exhibit as well as the acknowledgement of receipt
of the
sealed evidence bags referred to above. The chain evidence was
not disputed or seriously questioned in any way.
[14]
Under cross-examination, sergeant Mda was asked about Mr William
Kesa’s evidence regarding a sponge he said had blood
in it.
He testified that Mr William Kesa was mistaken about that as there
was no sponge there. Because of the fire
there was no sponge
there. He was also mistaken in his evidence about an overall
having been found. What Mr William
Kesa referred to as an
overall must have been the nike tracksuit pants which was retrieved
from inside the toilet pit. He
further testified that the
cleaning at the crime scene was done by family members and the
accused did not participate in it.
He confirmed that the
evidence he gave about why the accused left their homestead at
Teenbank to go and stay at Kromspruit were
the reasons given to him
by accused no.1. He denied putting the tracksuit top in the
load bin of his vehicle and insisted
that in fact he put it in an
evidence bag in the presence of accused no.1.
[15]
At some point, at the request of advocate Gxaba who at the time
represented accused no.1, sergeant Mda was recalled for further
cross-examination to put accused no.1’s version to him which
were specific instruction of the accused no.1. During
that
cross-examination it was put to him that accused no.1 had been asked
by Mr William Kesa to clean the floor. During that
cleaning
process he, accused no.1, saw something that looked like blood.
Sergeant Mda disputed accused no.1’s version
in this regard as
lies. Mr Gxaba further put it to him that if there was any
blood in accused no.1’s clothing it might
have gotten to his
clothing when he was cleaning the floor. Sergeant Mda disputed
this version of the accused. It was
further put to him that
accused no.1’s tracksuit top hood strings were stained by a
maroon water proofing paint. Sergeant
Mda disputed this as well
and insisted that he saw blood stains in the hood strings of the
tracksuit top of accused no.1 and that
is why he requested it from
him and took it to the laboratory.
[16]
The State then called Mr Sakhele Njadu. He testified that he is
employed as a clerk of the court in Sterkspruit.
In his
capacity as such he dealt with criminal cases, small claims court
cases as well as domestic violence cases. On 20
July 2018 he
attended to members of the public in his office and at some point it
was the turn of the accused to be assisted.
They had lodged a
complaint against their parents previously and on the 20 July 2018
they came in connection with that complaint.
Their parents had
also been advised to come and were present. The complaint of
the accused related to payment for services
allegedly rendered by
them at their home. Apparently they had built a house at their
home for which they wanted to be paid.
The amount involved was
about R20 000.00.
[17]
He testified that when it was the turn of the accused to be attended
to, he called their mother and father from outside to
come to his
office. When they were all in the office accused no.1, Thobani
Kesa was doing most of the talking. He enquired
from him what
had happened. Accused no.1 stated that they wanted their
parents to pay them for services rendered. Their
parents were
in the company of their daughter who said that they would be paid but
the bank card was at home. Accused no.1
stated that they wanted
to be paid for building a structure at home because even if it was
not them who were the builders, any
other person would have been paid
for his services. Their mother retorted that if they wanted to
be paid they should first
refund her the expenses that had been
incurred in connection with their traditional circumcision.
[18]
At that stage accused no.1 became very angry and uttered words to the
effect that he knew that his mother would be difficult.
He said
that his mother had an evil heart, she was cruel and she was a
witch. When those heated exchanges took place he requested
all
of them to leave his office. Accused no.2 then spoke to accused
no.1 telling him that they should leave. Before
they left
accused no.1 said that their parents must tell them if they were
going to pay them or not so that if they were not going
to pay them
they could make other means of getting their money from their
parents. When accused no.1 said those things his
impression was
that he was being rude to his mother and was in fact threatening
her. They all left his office and that was
the last time that
he saw them.
[19]
Under cross-examination it was put to Mr Njadu that accused no.1 was
saying that it was not him who attended to the accused
and their
parents on that day. He denied that. It was further put
to him that he, Mr Njadu, only attended to the issue
of the
protection order. Mr Njadu testified that he was not involved
in the issue of the protection order. He only
attended to their
small claims court issue. He maintained that accused no.1 had
mentioned the amount of R20 000.00 on
the first occasion when
they came to his office. He further insisted that accused no.1
had said that his mother was evil,
cruel and was a witch during their
exchanges in his office on the 20 July 2018. He further
confirmed accused no.1’s
utterances in which he said that they
must be told if they were going to get their money or not so that if
they were not going
to be paid they could make other means of getting
their money. Mr Njadu disputed that it was another official who
attended
to the accused and their parents on that day. He
explained that the official who was in his office at the time was an
intern
who could not have attended to members of the public while he
was present. He further testified that the said intern was
capturing domestic violence files in their computer while he was
attending to the accused’s small claims court issue.
[20]
The next witness for the State was Sinentlahla Kesa. Her
evidence was that she was 21 years old and stayed at Kromspruit
in
Sterkspruit. She knew both accused as they are from the same
family as herself. In July 2018 she was at Kromspruit
when
accused no.1 came to her asking for house keys for her homestead.
At the time there was no one staying at her home as
she was staying
with another family member because she had a small baby. She
gave him the keys. On a certain Monday
police came to her and
asked her about a particular tracksuit. She told the police
that that grey tracksuit belonged to accused
no.1 as she would see
him wearing it from time to time.
[21]
Under cross-examination Sinentlahla maintained that she saw accused
no.1 wearing the tracksuit on a number of occasions.
Sometimes
she would be walking past her home from where she stayed at the time
while visiting her boyfriend. She would see
him wearing it.
Even during the funeral of her grandmother, accused no.1 was there
wearing the same tracksuit. She
confirmed that it was the same
tracksuit top that police showed her when they came to see her and it
was grey in colour.
She explained that the funeral which she
said accused no.1 attended was not the funeral of the four deceased
persons in this case.
It was the funeral of her direct
grandmother. Sinentlahla explained in response to the
court’s questions that
the deceased in count 3, Mqondisi Kesa
and her father were brothers.
[22]
The next witness for the State was Dr Jwaqa. His evidence was
that he is a forensic pathologist. On 24 July 2018
he performed
autopsies on four bodies of the deceased persons in this matter.
He observed that they had sustained 100% burns.
He testified
that all the four bodies were burned beyond recognition. He
completed a medico legal post mortem report in respect
of each one of
the bodies. He testified that burned bodies do not bleed.
They do not lose blood, they lose fluid.
He explained that if
blood was found at the crime scene, that would indicate that the
cause of bleeding was something else as burned
bodies did not bleed.
[23]
The last witness for the State was warrant officer Francis-Pope.
She testified that she is a member of the SAPS, working
at the
Biology Unit in the Western Cape. On 29 July 2019 she handled a
case file in respect of this matter in her capacity
as a forensic
analysis and reporting officer. Her responsibility was to look
through the case file and compare DNA profiles
obtained from the
crime scenes with samples. In this matter four DNA samples were
received which were two samples from possible
suspects and two
samples from some of the deceased individuals. She compared all
those reference samples to all the DNA profiles
obtained from the
exhibits and compiled a report. She testified that one of the
DNA profiles was possible blood from a tracksuit
top which was in
sealed bag number PA4002561679. There was also a reference
sample in sealed bag number PA4002561855 which
was obtained from one
of the deceased, Thubakazi Kesa.
[24]
The possible blood from the tracksuit top and the reference sample
were from a female person. The findings were that
the reference
sample of Thubakazi Kesa in sealed bag number PA4002561855 was read
into the mixture DNA from possible blood from
the tracksuit top in
sealed bag number PA4002561679. Her conclusion was that the DNA
of the deceased Thubakazi Kesa was found
on the tracksuit top.
The second deceased reference sample was that of Owam Kesa and it
could not be linked to any of the
exhibits. The two suspects’
reference samples were from Ntembeko Kesa and Thobani Kesa.
Ntembeko Kesa’s
DNA was linked to possible blood from the jean
pants. The DNA sample of Ntembeko Kesa in sealed bag number
PA4001825929 matched
the DNA sample from possible blood from the jean
pants in sealed bag number PA4002561853. The jean pants was
labelled as
belonging to Ntembeko Kesa. Therefore, it was his
own blood that was found in his own jean trousers.
[25]
With regards to the reference sample of one of the deceased,
Thubakazi Kesa which was in sealed bag number PA4002561855, warrant
officer Francis-Pope’s evidence was that it matched the DNA
from the left nails contained in sealed bag number PA4001790278.
This was in respect of a swab taken from under the left hand nails of
Thubakazi Kesa and therefore it was her own DNA that was
found under
her nails. Her DNA was also read into the mixture results from
another swab from the right hand nails also contained
in sealed bag
number PA4001790278. The mixture results from that DNA meant
that there was another person’s DNA but
only her DNA could be
read into that mixture. There was not enough DNA obtained from
the burnt remains contained seal bag
number PW3000096785. These
burnt remains were from a household item that tested positive for
possible blood. Indeed
that item tested positive but the DNA
from it could not be found at all the 16 locations for the purposes
of making a conclusive
DNA analysis. This means that there was
not enough DNA in it. All that could be established was that it
was human blood
but there was not enough DNA to conclude whose blood
it was.
[26]
There was also an unknown male DNA which was obtained from possible
blood found in the tracksuit pants contained in sealed
bag number
PA4000876232. She testified that that tracksuit pants allegedly
belonged to Thobani Kesa. From them a male
DNA profile was
found. However, that DNA could not be matched with any of the
four reference samples that had been set to
them. From the
samples of the deceased persons, that they had received there was no
sample from a male person. Because
the covering letter
indicated the names of the four deceased persons they requested to be
furnished with the reference samples
of the other two deceased
persons, Mqondisi Kesa and Nobubele Kesa which were not amongst the
samples they had been furnished with.
They did not receive the
requested samples from the police. Therefore, the DNA samples
of both Mqondisi Kesa and Nobubele
Kesa could not be compared to any
of the exhibits as they were not available.
[27]
She explained that without Mqondisi Kesa’s reference sample it
could not be determined if the male DNA found in the possible
blood
from the tracksuit pants was his blood. While it was possibly
his blood, this could not be confirmed without a reference
sample
from him. She explained that, that blood from a male person
which was found in the tracksuit pants was not the blood
of one of
the accused. At the end of the evidence of this witness the
State closed its case. Thereafter the defence
made applications
for the discharge of the accused in terms of section 174 of the Act.
The application by accused no.2, Ntembeko
Kesa was successful and he
was acquitted and discharged. However, the application in terms
section 174 of the of the Act
made on behalf of accused no.1, Thobani
Kesa was dismissed.
The
defence case.
[28]
In opening his case, accused no.1 took to the witness stand to
testify. He testified that when they arrived at the crime
scene
or their homestead he and accused no.2 were given two spades and told
to clean up the area that had been burnt down.
He used the
spade in picking up and collecting the ashes. He picked up
twice and he was told to stop. As he was instructed
to stop
another gentleman approached them and said it looked like there was
blood there. However, his own observation was
that there was
some water and some ashes which were there on the ground. The
said gentleman said that it looked like there
was blood and said that
police should be called to come to the crime scene. He did not
know the name of the said gentleman
but he could recognise him if he
saw him. He was from his mother’s side of the family.
[29]
They were told to stop and they stopped and the police were called to
the crime scene. Upon their arrival, the police
asked them
where they were coming from. They explained to the police that
they were from the homestead that was burnt up.
The community
members enquired as to where they were when the burning of their
homestead occurred. During this questioning
they were called
one by one with each person being called inside the house where the
questioning took place. His brother,
accused no.2 was called
first and after they finished questioning him he was let go. He
came out of the house and informed
him that he was being called
inside the house. He went in and he was then asked where he got
the keys of the homestead in
which they lived. He explained
that their mother gave them directions to that homestead where they
lived in Kromspruit and
gave them the cellphone numbers of Mr Willima
Kesa. They phoned Mr William Kesa who directed them to where
the key was.
Eventually Sinentlahla Kesa gave them the keys.
[30]
He testified that before police arrived one Mr Sipotopoto Mbatyazwa
asked him why did it look like he had blood stains on his
hood
strings. He answered him saying no, that was not blood but it
was some water proofing membrane. The strings of
his tracksuit
top hood got it from a bucket that was on the ground.
Apparently the bucket had membrane which had a maroon
paint and the
strings of his tracksuit top or hood would get dunked into the
bucket. Every time he tried washing the strings
the paint would
not come off. The left side of the hood string would be dipped
into the 5 litre container which he was carrying.
[31]
He was instructed by Mr Mbatyazwa to take off the tracksuit top so
that it could be taken for testing. He responded to
him saying
that Mr Mbatyazwa should rather take the tracksuit top string and not
the whole tracksuit top but Mr Mbatyazwa refused.
He then took
off the tracksuit top and handed it to Mr Mbatyazwa. When the
police arrived Mr Mbatyazwa handed over the tracksuit
top to the
police officers. He then saw Mr Mbatyazwa pointing at him while
he was with the police after handing the tracksuit
top to them.
The police then approached him and asked him where he stayed and he
told them where he stayed. The police
took the tracksuit top
and put it inside the police van.
[32]
They then took him and accused no.2 to their grandfather’s
homestead where they stayed at the time of the incident.
He and
accused no.2 opened the house and the police started searching in the
wardrobes and under the bed. After the police
had finished
searching inside the house they proceeded to the toilets and searched
there. One of the police officers yelled
to the other police
officer asking him to bring him a long stick. The said officer
used his cellphone to illuminate inside
the toilet and started
stirring using the stick. In the process of stirring he came up
with a tracksuit pants which was grey
in colour. He looked at
the waist of the pants and saw that it was written XXL which was its
size which he understood it
to be extra-extra large.
[33]
He testified that he did not know whose tracksuit pants that was.
When they explained to the police that they did not
have knowledge
about that tracksuit pants, Mr Mda took it and folded it and put it
in the back of the police van where he had put
his tracksuit top.
They were taken to the police station where they were charged on
suspicion of being involved in the murder
of their parents. He
was invited by his legal representative to comment on the DNA
evidence led by warrant officer Francis-Pope
that indicated that the
blood that was found in his tracksuit top was the blood of one of the
deceased. He testified that
when he took off the tracksuit top
on that day and gave it to Mr Mbatyazwa it did not have blood.
He further testified that
the tracksuit pants which was retrieved
from the toilet pit was not his and he had no knowledge of it.
He further testified
that only the tracksuit top which he took off
and gave to Mr Mbatyazwa was his.
[34]
Under cross-examination by the prosecutor accused no.1 testified that
the relations between himself and his parents were good
and they
never quarrelled. He never lodged a complaint against his
parents at the magistrates’ court in Sterkspruit.
He
never came to the magistrates’ offices in Sterkspruit to
discuss a complaint about the non-payment of money owed to him
and
accused no.2 by their parents. What brought them to the
magistrates’ court at that time was what was written in
a
document he had in his possession. They never came to lodge a
complaint against their parents. It was their father
who had
brought them there to inform them about what was written in the
document in his possession. He explained that that
issue
involved a site which had a flat, a toilet and some running water.
He testified that he heard Mr Njadu who said that
they had come to
the magistrates’ offices to complain about money.
However, his father had explained to Mr Njadu that
they were there
about the contents of that document. Their visit to Mr Njadu’s
office was about his site which he could
possibly sell. The
issue of a sum of R20 000.00 for building a structure in his
homestead did not exist. He denied
demanding money from their
parents. He denied calling his mother evil or a witch or saying
that they would see how they were
going to get their money.
[35]
He further testified that they got to know about the fact that their
parents were burnt in the house when Mr William Kesa arrived
at
Kromspruit to inform them. They were never phoned and told
about it. He confirmed that his parents, his younger
sister and
his sister’s child who stayed with their mother all stayed at
their home in Teenbank in July 2018. He further
confirmed that
they were all burnt in their homestead. He and accused no.2
were fetched from Kromspruit and caused to clean
up the burnt place.
He disputed Mr William Kesa’s evidence and Mr Mda’s
evidence that they never participated
in cleaning the place. He
insisted that they were given two spades and told to clean up. They
picked up twice using
the spades and they were stopped. He did
not notice who gave them the spade as the place was full. He
could not recall
who told them to clean the place but it was the
elderly people that were there. Mr William Kesa had gone out to
call the
police and he saw him arriving with the police while he was
in the house. He actually saw Mr Wiiliam Kesa alighting from
the police vehicle. But at the time they were cleaning he did
not notice whether he was present or not. At that time
nobody
else was doing the cleaning, it was just himself and his brother,
accused no.2.
[36]
He did not see the people from the funeral parlour who, accordingly
to Mr William Kesa, did the cleaning. He and accused
no.2 did
the cleaning until they were stopped. He could not remember who
told them to stop cleaning. He testified that
he never told his
previous attorney and the current attorney about the name of Mr
Sipotopoto Mbatyazwa and the role he played because
they did not ask
him. He later changed and said that he told his current
attorney that he was told to take off his tracksuit
top but he did
not say who said so. He merely told him that he was told to
take off the tracksuit top. This was because
he knew that he
would narrate it when he was being asked about it. He denied
that it was Mr Mda who saw blood stains on his
tracksuit top and
confiscated it. He maintained that it was Mr Mbatyazwa who saw
what he thought was blood on the left hand
side of his hood strings.
When it was put to him that his legal representatives never put it to
Mr Mda that he was given
the tracksuit top by Mr Mbatyazwa, he
testified that that was because he had not told his attorney about Mr
Mbatyazwa’s name
but he knew that he would reveal it when he
testified.
[37]
He confirmed that at Kromspruit a tracksuit pants was found in the
toilet pit but he did not know to whom it belonged.
He disputed
Sinentlahla’s evidence that he had a grey tracksuit and that
she saw him wearing it at her grandmother’s
funeral. He
explained that he did not have a tracksuit of that size and also that
he did not wear tracksuits in funerals.
He added that he never
attended the funeral Sinentlahla was referring to. When it was
put to him that Sinentlahla’s
evidence about him being at the
funeral was never challenged, he testified that his attorney knew
about it. When it was put
to him that his tracksuit top was
found by the laboratory to have his mother’s DNA profile, he
testified that when he took
it off it did not have any blood in it.
He therefore did not know where it got into contact with his mother’s
blood.
At the end of his evidence accused no.1 closed his case
without calling any other witness.
The
analysis.
[38]
It was submitted by counsel for the State that the State relied on
the evidence of a circumstantial nature. The approach
to
circumstantial evidence was restated in
Gcaza
[1]
by the Supreme Court of Appeal as follows:
[23]
The appellant’s challenge to the evidence is in a piece-meal
fashion. This court in
S v Reddy & Others
1996(2)
SACR 1(A) at 8C-D warned against this, where it 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 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
R v
Blom
1939 AD 188
at 202-203, 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.’
[24]
[T]he trial court’s approach to the evaluation of the evidence
was correct. It considered the totality of the evidence
and, in
that process weighed the evidence of the State’s witnesses
against that of the appellant. As appears above,
the
appellant’s evidence was so riddled with contradictions,
regarding whether or not he owned a hat, or whether he wore
a hat or
if it was in his bag. Distancing himself from the blue cooler
bag, which he had removed a few hours prior to the
disappearance of
the deceased, clearly indicates that he was not taking the court into
his confidence. The trial court in
my view, rightfully rejected
his evidence. He admitted that the deceased was known to him as
one of the children from the
neighbourhood.
[25]
The sentiments expressed by this court in
S v Ntsele
1998 (2)
SACR 178
(SCA) are relevant, where it held that the onus rests upon
the State in a criminal case to prove the guilt of the accused beyond
reasonable doubt – not beyond all shadow of doubt. The
court held further that when [it] was dealing with circumstantial
evidence, as in the present matter, the court was not required to
consider every fragment of evidence individually. It was
the
cumulative impression, which 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. Courts are warned to guard against the tendency to
focus
too intensely on separate and individual components of evidence and
viewing each component in isolation.”
[39]
What is discernible from the evidence of the State in this matter is
that the deceased did not die in a fire accidentally.
I say so
being fully mindful that nobody saw when and how the fire started and
there is no evidence of anybody or the accused being
seen leaving
that homestead shortly after the fire started. However, I will
show below with reference to the evidence that
they died through the
deliberate actions of another person. The question before court
is who that person is who intentionally
caused the death of the
deceased. In other words, the deceased were murdered, the
question is who is responsible for their
killing. Put
differently, whether the State has established beyond reasonable
doubt with reference to the evidence that the
person responsible for
the death of the deceased is the accused person, Mr Thobani Kesa.
[40]
Briefly, the evidence of the State is that the relations between
accused no.1 and 2 and their parents had become severely strained,
to
put it mildly. Things had become so bad between the two accused
persons and their parents apparently about money for building
a
structure at their homestead that the issue resulted in a civil claim
being instituted at the small claims court. At some
stage even
a protection order against the accused was sought and obtained by
their parents. Mr William Kesa testified that
he even sought to
have the differences between the two accused persons and their
parents resolved at home amicably according to
tradition by the
family and not in court. However, he was later told by his
brother, the late Mqondisi Kesa who is the deceased
in count 3 that
he would be seeking a protection order against his own sons, accused
no.1 and 2 as things had apparently gotten
worse. It appeared
that indeed he did so resulting in the accused having to leave their
home and go and stay at their paternal
uncle’s homestead in
Kromspruit sometime in July 2018.
[41]
A lot of this evidence concerning the relations between the accused
and their parents was not seriously and cogently disputed.
It
is common cause that the two accused were already staying in
Kromspruit at the date of the incident, the 22 July 2018.
It is
further common cause that a protection order was obtained by the
deceased in counts 3 and 4 against their sons. As
a result, the
accused were forced to leave their home and stay at their paternal
uncle’s homestead shortly before their parents’
homestead
from which they had been expelled went up in flames mysteriously. It
is not in dispute that two days before the date
of the incident,
accused no.1 and his brother, accused no.2 together with their
deceased parents and sister were in the magistrates’
court in
Sterkspruit. The clear evidence of Mr Sakhele Njadu was that
the accused were in his office about a small claims
court civil claim
in which they demanded to be paid about R20 000.00 for building
a house at their homestead. When the
matter was discussed in
his office, Mr Njadu’s evidence was that the discussions became
so heated that he had to ask all
of them to leave his office.
However, before they left accused no.1 uttered words which Mr Njadu
understood to be both rude
and threatening to his mother. Those
words were to the effect that they must be told if they would get
their money so that
if they were not going to get it they could
devise other means of getting it. Mr Njadu testified that when
accused no.1 uttered
those words he was enraged and rude to his
mother. Accused no.1 also said that his mother was difficult
and had an evil heart,
was cruel and a witch.
[42]
While accused no.1 denied that the issue that was discussed in Mr
Njadu’s office was their demand for money, he did confirm
that
there was an issue of the protection order that his parents obtained
against them. Most significantly, while accused
no.1 disputed
the reason for them to be in Mr Njadu’s office and even that on
that day, they were attended to by him, he
gave new evidence about
why they were at the magistrates’ offices. He testified
that they were there about an issue
involving a site. This new
evidence and the document accused no.1 sought to suggest that it was
proof of their reason to
be at the magistrates’ office in
Sterkspruit was never put to Mr Njadu. This is besides the fact
that it contradicted
his earlier version put to Mr Njadu that they
were there about a protection order. What is clear from the
evidence is that
the relations between the two accused persons and
their parents were very bad. This is a very important backdrop
leading
to the date on which the deceased were evidently murdered.
Most importantly, the evidence showed accused no.1’s propensity
to lie and introduce new evidence as the case progressed, which he
did very often.
[43]
On the day of the incident, the two accused were at Kromspruit where
they stayed alone. This is common cause. It
is further
common cause that a tracksuit pants was found in a toilet pit at
Kromspruit by sergeant Mda. The evidence of the
State is that
the said tracksuit pants had blood stains. Warrant officer
Francis-Pope testified that indeed those blood stains
were blood of a
male person. While Mr Mqondisi Kesa’s DNA sample could
not be obtained for whatever reason, it is common
cause that he was
the only male person who died together with his wife, child and a
female grandchild during that fire. The
accused distanced
themselves from any knowledge of that tracksuit pants which was found
in a toilet pit in their place of residence
where they were the only
persons who stayed in that homestead.
[44]
There is also the evidence of a tracksuit top which it is common
cause that it belonged to accused no.1. He admits that
he was
asked to take it off. What he disputes is that it was sergeant
Mda who saw blood stains in it and asked him to take
it off and hand
it to him. Very significantly, sergeant Mda was recalled for
further cross examination at the instance of
accused no.1’s
counsel, Mr Gxaba. Having been recalled, it was put to him that
accused no.1 had been told by Mr William
Kesa to clean the floor.
As he was doing so, he, accused no.1, saw something that looked like
blood. It was further
put to sergeant Mda that if there was any
blood in his clothing it might have gotten to it when he participated
in the cleaning
of the crime scene. So both on the evidence of
the State and the version of the accused put to the State witness, Mr
Mda
there was blood that was found at the crime scene during the
cleaning process.
[45]
Accused no.1 himself in his own evidence said that a Mr Sipotopoto
Mbatyazwa saw what he said was blood at the spot the accused
were
cleaning, as a result they were stopped from cleaning. Accused
no.1 further testified that Mr Mbatyazwa saw what he
said was blood
stains in his track top. The evidence of warrant officer
Francis-Pope was that some blood was found in some
of the items that
were found at the crime scene. It is hardly surprising that it
could not be determined whose blood it was
considering the water that
was there. The significance of this lies in the fact that the
deceased were so badly burnt that
they were beyond recognition.
Furthermore, the evidence of Dr Jwaqa was that if blood was found at
the crime scene it would indicate
another cause for the bleeding.
This, he said was because burned bodies do not bleed, they do not
lose blood, they lose fluid.
Clearly, the blood that was found
in the room in which the deceased burned to death points to those
deceased persons or some of
them having been caused to bleed before
the place was set alight.
[46]
It was further put to sergeant Mda that in fact what he saw in those
tracksuit top hood strings was a maroon roof paint and
not blood.
Even during his testimony, accused no.1 pursued the maroon roof paint
theory in those hood strings. What
he did not deal with was his
own version that had been put to Mr Mda that to the extent that blood
was found in his clothing, it
would have gotten to it when he,
accused no.1 participated in cleaning the area where the deceased
bodies were found. What
accused no.1 was also unable to explain
is that his tracksuit top was found by the laboratory, on the
evidence of warrant officer
Francis-Pope, to have the DNA profile of
his mother, not roof paint. This put paid to the gobsmackingly
farfetched maroon
roof paint theory which was in any event an
undisguised falsehood and utter fabrication.
[47]
I must emphasize that at some point during his evidence, accused
no.1’s version changed to be that he was asked by Mr
Sipotopoto
Mbatyazwa to take off the tracksuit top after he saw what he thought
was blood in it. This was never put to sergeant
Mda and in fact
Mr Mbatyazwa and the clearly significant role the accused said he
played were mentioned for the very first time
when he testified
during his evidence in chief. It was therefore new evidence
which was surprisingly never put to the relevant
State witnesses, Mr
William Kesa and Mr Mda. Accused no.1 proferred no version
about how his mother’s blood could have
been found in his
clothing on the day of her murder. The only version from him in
that regard is the one his legal representative
put to the State
witness, Mr Mda that what is now known to be his mother’s blood
that was in his hood strings and the blood
in his tracksuit pants
would have gotten to his clothing when he participated in the
cleaning. This begs the question, how
did the accused’s
mother’s blood got to be in his tracksuit top which he was
wearing on the day of the incident after
his family’s gruesome
death in that fire. Furthermore, how did the blood of an
unidentified male person got to be in
his tracksuit pants in the
morning of his father’s gruesome murder?
[48]
The evidence of Sinentlahla Kesa is also very significant in some
respects. First, it was her unchallenged evidence that
the
police came to her with a tracksuit asking her to identify it.
She testified that at that time, it must have been a week
since the
accused had asked her for the key to her homestead in which no one
stayed until the accused arrived. The evidence
of Sinentlahla
was that she saw accused no.1 wearing the same tracksuit during the
funeral of her grandmother which he attended.
When
accused no.1 testified, he again and for the umpteenth time,
introduced new evidence. That evidence was that he did
not even
attend Sinentlahla’s grandmother’s funeral. The
second new piece of his evidence in this regard was
that he in any
event never wears tracksuits in funerals. None of this evidence
was put to Sinentlahla. The contradictions,
new evidence,
falsehoods and inconsistencies in accused no.1’s evidence and
versions were too many to chronicle all of them.
[49]
That the cause of death of his parents, sister and niece was the
actual fire cannot be questioned. It is also clear that
some
injuries may have been inflicted on his father and his mother, during
that incident. Very significantly some of what
is clearly his
parents blood was found in accused no.1’s clothing on the day
of their death in that fire. Having said
that, I do accept the
evidence of the forensic pathologist that the cause of death was
burns. The deceased’s bodies
were not only burnt beyond
recognition, they were all badly burnt and charred. It clearly
could not have been possible for
the forensic pathologist to observe
injuries of whatever nature save for the burns in those
circumstances. The photo album
compiled by the police shows
badly burnt and charred sketelal remains and not bodies from which
injuries could have been observed.
The post mortem reports also
made this much very clear. The State has therefore proved the
cause of death of the deceased
which is burns.
[50]
It is clear from the evidence that not only did the accused have
motive for killing their parents who to their knowledge, stayed
with
their sister and her child in the same structure or building.
They also had an opportunity to plan and burn their homestead
after
they were forced to leave their home and stay at Kromspruit. It
is quite clear that accused no.2 who was always with
accused no.1 at
all material times was involved in his families’ brutal
decimation. However, the evidence against accused
no.2 was
insufficient and weak at best hence his discharge in terms of section
174 of the Act. Some of the evidence suggests
that the return
date for the protection order obtained against them was the 27 July
2018. The dramatic events of the 20 July
2018 in Mr Njadu’s
office in which accused no.1 made threats are not without
significance. Two days later on the 22
July 2018, the deceased
were roasted in a fire and their badly charred bodies which were
burnt beyond recognition were found that
fateful day.
[51]
Significantly, some clothing item of accused no.1 was found at
Kromspruit with what is presumably his father’s blood
on that
very day of their death in a pit toilet. This is over and above
the blood of his mother which was found in his tracksuit
top which he
was wearing on the very morning of her death. All the evidence
taken together, including that of accused no.1
some of which
corroborated that of the State leads to the only possible
conclusion. That is that accused no.1 killed his
mother and
father, his sister and her child intentionally and sought to cover
his tracks by dumping the blood stained tracksuit
pants in a toilet
pit in his place of residence. He obviously did not notice the
blood stains in the hood strings of his
tracksuit top which he was
found wearing that very morning of these murders. He knew that
his parents lived with his sister
and her child. When he set
the structure on fire in which they all lived, he intended that all
of them should die there so
that there would be no survivors to tell
the story of his family’s murder.
[52]
The submission by the legal representative for accused no.1 that
circumstantial evidence is to be treated in the same way as
common
purpose is rather novel as far as I know. It is either a
complete misunderstanding of the principles applicable to
common
purpose and the need to specify it in the charge sheet or ubambelela
ngomcinga (a sheer grasping at the straws). Or
indeed it is a
complete misunderstanding of circumstantial evidence and how our
courts have dealt with it over many decades. The
other possibility is
a misapplication by defence counsel of sections 84 – 88 of the
Criminal Procedure Act on
which he sought to rely in making this
rather strange submission. The submission seemed to be that
because the State’s
intention to rely on circumstantial
evidence was not stated in the charge sheet and that the charge sheet
was not amended to reflect
the intention of the State in this regard,
the charges were therefore invalid and accused no.1 should be
acquitted.
[53]
Regardless of what was going on in the mind of the legal
representative for accused no.1, what is clear is that he was also
mired in serious confusion about the principles involved in the
formulation of a charge sheet. Those who appear for the accused
are entitled and indeed have a duty to pursue the defence of their
clients with all the determination they can muster. However,
in
doing so, they must be careful not to set the court on a wrong path
for in doing so they risk misleading the court which is
contrary to
their time honoured obligation to observe ethical standards and
professionalism even as they ardently pursue the defence
of their
client. I need not take this issue beyond this point.
Suffice it to say that at best it is a misapplication
of the
well-known principles of our law which need not detain this Court.
It is in any event irrelevant to the question of
the guilt or
innocence of accused no.1 and indeed the fairness of his trial.
[54]
As I conclude, regard being had to the totality of all the evidence
both by all the State witnesses and accused no.1 himself,
I do need
to restate what I regard as a profound analysis on inferential
reasoning. In my view the case of
Mlambo
[2]
which received the consideration of the Appellant Division, and the
pronouncements made therein find apt resonance in this case.
In
Mlambo
Malan JA expounded in some detail on the evaluation of circumstantial
evidence and the assessment of all the evidence presented
during a
trial. I quote copiously from that judgment in which the
learned Judge of Appeal said:
“
It
is obviously impossible to formulate the principle in language which
will produce any measure of certainty and endeavours are
made to
afford more definite and reliable guidance to those engaged in the
solution of tantalising problems by unravelling inferences
from
circumstantial evidence. The language employed in the more
popular way of enunciating the principle does not appear
to offer
much relief. It is no more precise than, and it is exposed to
the same dangers of misinterpretation and misapplication
as, the form
which at one time found almost universal favour and which has served
the purpose so successfully for generations.
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It
is sufficient for the Crown to produce evidence by means of which
such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused has committed
the crime charged. He must, in other words, be morally certain
of the guilt of the accused.
An
accused’s claim to the benefit of a doubt when it may be said
to exist must not be derived from speculation but must rest
upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not
in conflict
with, or outweighed by, the proved facts of the case.
Moreover,
if an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime
or even,
perchance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with the proved
facts a court
will, in suitable cases, be fully justified in rejecting an argument
that, notwithstanding that the accused did not
avail himself of the
opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as if
he had done so.
The
logical result of the contrary view would be to place a premium upon
false testimony and to afford protection to the cunning
and ingenious
criminal who could with impunity commit murders and, by destroying
the body, defy detection of the cause of death
and thus escape
condign punishment. The danger of serious miscarriages of
justice would be very real and if this line of
reasoning had
succeeded in the past many notorious murderers would have escaped the
gallows. In the present case it would be unrealistic
to have recourse
to the realm of conjecture when there is ready at hand material which
furnishes a perfectly sound, rational, common-scene
solution to the
problem.”
Conclusion.
[55]
The State witnesses gave evidence that was both reliable and
trustworthy. None of them sought to exaggerate their knowledge
of the facts about which they were giving evidence. Their
evidence was not contradictory and it all pointed to the guilt
of
accused no.1 with a very high degree of reliability and consistency.
This is not to say that all the State witnesses such
as, Mr William
Kesa, were perfect in their recollection of events. To the
extent that there may have been a few inconsistencies
in the evidence
of the State, such inconsistencies may have been errors as against an
attempt to mislead the court. On the
other hand, accused no.1
gave different versions and at numerous times he introduced new
versions and new evidence all in an attempt
to hide the truth by
deliberately misleading the court and by lying through his teeth.
His evidence was generally false and
full of innumerable
contradictions and often times his evidence was fabricated to
reconstruct the events to suit what he sought
to establish as a
defence. This was all done clearly to escape criminal liability
for the senseless annihilation of his parents
and close family
members. His evidence was not just improbable, it was clearly
false, it was lies and lies that were concocted
to mislead the
court. This, he did to save his face from the consequences of
the extreme cruelty with which he brutally and
intentionally caused
the death of his parents, sister and niece. The accused thought
he had committed a perfect crime that
would be impossible to prove as
he had killed every person in that house but the trustworthiness and
the credibility of the State
witnesses exposed his lies for what they
are. The State has therefore, on the proved facts, established
the guilt of the
accused beyond reasonable doubt.
[56]
In the result:
1.
Accused no.1 is found guilty of count 5, arson, the burning of his
parents’ homestead at Teenbank, Sterkspruit.
2.
Accused no.1 is found guilty of counts 1, 2, 3, and 4 the murder of
his sister Nobubele Hazel Kesa, his niece Hillary Kesa, his
father
Mqondisi Patric Kesa and his mother Thubakazi Victoria Mbatyazwa.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: L. Pomolo
Instructed
by:
National Director of Public Prosecutions
Mthatha
Counsel
for accused no.1: O.N. Mankanku
Instructed
by:
Legal Aid South Africa
Mthatha
Date
heard:
18 January 2023
Date
delivered:
13 February 2023
[1]
Gcaza
v S
(1400/2016)
[2017] ZASCA 92
(9 June 2017).
[2]
R
v Mlambo
1957
(4) SA 727
(
A
)
at page 737 H-738A-E