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[2023] ZAECMHC 7
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S v Kesa (Sentence) (CC19/2020) [2023] ZAECMHC 7 (16 February 2023)
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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
SENTENCE
JOLWANA
J
:
Introduction.
[1]
The accused stands convicted of one count of arson and four counts of
murder. The accused and all the four deceased persons
are blood
relatives. The deceased in count 3, Mr Mqondisi, Kesa, is the
father of the accused. The deceased in count
4, Mrs Thubakazi
Mbatyazwa is the accused’s mother. The deceased in counts
3 and 4 were married to each other.
The deceased in count 1,
Nobubele Hazel Kesa is the accused’s sister and the deceased in
count 2, O[...] H[...] K[...] is
the daughter of the deceased in
count 1 and therefore the niece of the accused person. It must
therefore be correct to refer
to these murders as a typical case of
familicide.
[2]
The facts and the circumstances in which the deceased were all killed
need not be repeated. Suffice it to say that in
the early hours
of the morning on 22 July 2018, the Kesa homestead was mysteriously
burned down with the deceased inside.
As a result, they were
all scorched beyond recognition. The accused was convicted for
all the crimes related to that incident.
This Court is now
faced with the onerous task of considering and deciding on the
appropriate sentences to be meted out to the accused
for the crimes
for which he was convicted after a long trial.
Sentencing
principles.
[3]
It is trite law that in considering an appropriate sentence, the
sentencing court must have due regard to the triad consisting
of the
crime, the offender and the interests of society
[1]
.
Our courts have, over the years, refined what a sentencing court
should look at in the sentencing process. In
Tsotetsi
[2]
the court listed and restated the basic sentencing principles as
follows:
“
(a)
The sentence must be appropriate, based on the circumstances of the
case. It must not be too light or too severe.
(b)
There must be an appropriate nexus between the sentence and the
severity of the crime; full consideration must be given to all
mitigating and aggravating factors surrounding the offender.
The sentence should thus reflect the blameworthiness of the
offender
and be proportional. These are the first two elements of the
triad enunciated in
S v Zinn
.
(c)
Regard must be had to the interests of society (the third element of
the Zinn triad). This involves a consideration of
the
protection society so desperately needs. The interests of
society are reflected in deterrence, prevention, rehabilitation
and
retribution.
(d)
Deterrence, the important purpose of punishment, has two components,
being both the deterrence of the accused from re-offending
and the
deterrence of would-be offenders.
(e)
Rehabilitation is a purpose of punishment only if there is the
potential to achieve it.
(f)
Retribution, being a society’s expression of outrage at the
crime, remains of importance. If the crime is viewed by society
as an
abhorrence then the sentence should reflect that. Retribution
is also expressed as the notion that the punishment must
fit the
crime.
(g)
Finally, mercy is a factor. A humane and balanced approach must
be followed.”
[4]
It is with the above principles in mind that I must do the very
difficult task of considering an appropriate sentence and sentence
the accused person accordingly. In the final analysis, the
sentencing discretion vests with the sentencing court itself which
must be exercised carefully and judiciously.
The
Minimum Sentences Act.
[5]
In respect of the four murder counts for which the accused has been
convicted the State had invoked the provisions of section
51(1) of
Act 105 of 1997 (the Minimum Sentences Act) in terms of which the
prescribed minimum sentence is life imprisonment.
The accused
was given the necessary warning by the court in this regard before he
pleaded. His legal representative also
confirmed that he had
also advised him of the implications of the invocation of section 51
(1) of the Minimum Sentences Act.
[6]
However, a sentencing court may depart from the imposition of the
prescribed minimum sentences if it finds that there are substantial
and compelling circumstances to justify such a departure as provided
for in section 51(3) of the Minimum Sentences Act. The
approach
to the consideration of whether or not a departure from the
prescribed minimum sentences is justified in the particular
circumstances of a case was captured very succinctly and pronounced
authoritatively in
Malgas
[3]
in which the court said:
“
A.
Section 51 has limited but not eliminated the court’s
discretion in imposing sentence in respect of the offences referred
to in Part 1 of Schedule 2 (or imprisonment for other prescribed
periods for offences listed in other parts of schedule 2).
B.
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or
the
particular prescribed period of imprisonment) as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the listed crimes in the specified circumstances.
C.
Unless there are and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardized and consistent response from the
courts.
D.
The specified sentences are not to be departed from lightly or for
flimsy reasons. Speculative hypotheses favourable to
the
offender, undue sympathy, aversion to imprisoning first offenders,
personal doubts as to the efficacy of the policy underlying
the
legislation and marginal differences in personal circumstances or
degrees of participation between co-offenders are to be excluded.
E.
The Legislature has however, deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime
and the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F.
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.”
Mitigating
factors.
[7]
The accused testified in mitigation of sentence and in doing so, he
brought to the attention of the court his personal circumstances
that
he wanted the court to take into consideration before he is
sentenced. He testified that he is a first offender at the
age
of 39. He is unmarried and has three children with different
mothers. Those children live with their respective
mothers.
He is therefore not a caregiver and has never been a caregiver to
those children. He testified that at some
point after his
arrest for this case, he escaped from lawful custody and went to the
homestead of his aunt at New Rest in Sterkspruit.
On his
evidence, he escaped from lawful custody on a Wednesday in April
2019, eight months after his arrest, and arrived at the
homestead of
his aunt, M[...], between 21:00 and 22:00 at night. He did not
give any evidence about what he did the following
day which would
have been a Thursday.
[8]
However, on the following Friday members of the community arrested
him. He testified that they assaulted him before they
called
the police. He was then re-incarcerated. His explanation
for escaping from lawful custody was that he wanted
to ask his aunt
why his grandfather, presumably Mr William Kesa, was being allowed to
sell his home while he and his brother, Ntembeko
Kesa, his then
co-accused were still alive. Significantly, he did not go back
to custody on his own volition after he had
had time to discuss the
issue he wanted to discuss with his aunt. It took members of
the community to re-arrest him after
which they called the police who
took him back to detention as an awaiting trial prisoner.
[8]
It was submitted on his behalf by his legal representative that the
fact that he is a first offender, and has been in incarceration
since
his arrest on 22 July 2018 are justifications for a departure from
the prescribed minimum sentences. Reference was
also made to
the fact that he had been assaulted by members of the community when
they re-arrested him and in that sense, he was
punished. What
this submission ignores is that he would not have been assaulted if
he had not escaped from the safety of
lawful custody. It also
ignores the fact that in escaping from lawful custody he had broken
the law and was in fact running
away from the consequences of his
criminal conduct which had led to his arrest and incarceration in the
first place. Even
if he was indeed assaulted, that is in my
view, irrelevant to the central question of whether or not his
personal circumstances
do indeed justify a departure from the
prescribed minimum sentences. In any event he should have and
he still remains entitled
to lay criminal charges against those
members of the community he said assaulted him. He is not
automatically entitled to
lesser sentences on account of his alleged
assault by members of the community.
Aggravating
factors.
[9]
The State made submissions in aggravation of sentence emphasizing the
fact that the offences for which the accused has been
convicted are
of an extremely serious nature. Not everyday that one hears of
a case in which a person has wiped out almost
his entire family from
the face of the earth. The accused testified that from his
father and mother, the deceased in counts
3 and 4, they were three
children. The first born was his elder brother, the erstwhile
accused no.2 and he is the second
born. The third born was his
sister Nobubele Hazel Kesa, the deceased in count 1. The other
member of that family was
Nobubele’s young daughter, O[...]
H[...] K[...]. All these four family members were killed by the
accused mercilessly.
They were burnt beyond recognition and
their bodies were virtually incinerated in that inferno.
[10]
The post mortem report in respect of his sister, the deceased in
count 1 reflects that she was approximately 14 weeks pregnant
at the
time of her death. According to the post mortem report, the
foetus was looking normal in its mother’s uterus.
What
cushioned the foetus from being incinerated into smithereens like its
mother is nothing short of a miracle. The accused
has not taken
this Court into his confidence and explained why he ended up killing
his entire family including his young niece
O[...], a child.
There was no expression of remorse by him at all. He did not
even try to give an honest account of
what he did which led to the
death of his entire family. How that Kesa homestead was
set alight and what inflammable
substance was used will never be
known. What caused his mother and father to bleed which led to
blood being found at the
crime scene and blood stains being found in
his tracksuit will never be known. He expressed no emotions
about what had happened
to his own parents who gave birth to him, fed
and raised him. His unrepentant heartlessness is exposed by his
escape from
custody for the sole purpose of preventing his
grandfather from allegedly selling the homestead he burnt.
[11]
The background to these crimes is that he and his brother’s
hostile relations with their mother and father went as far
as the
magistrates’ court in Sterkspruit where he and his brother
instituted civil court proceedings at the small claims
court for the
payment of about R20 000.00 for services rendered in building
his own homestead. His parents obtained
a protection order
against him and his brother when the relations between them and their
sons deteriorated further. This
was to be followed by the
painful premeditated murder of their parents, sister and niece under
the cover of darkness in the early
hours of the 22 July 2018. He
was careful to hide all traces of his involvement in these crimes by
dumping his blood stained
tracksuit pants in a toilet pit at
Kromspruit where he and his brother stayed. He clearly did not
notice that the blood of
his mother had somehow splattered to the
hood strings of his tracksuit top despite his carefulness in ensuring
that he would not
account for his cruelty.
[12]
He is a cunning and devious criminal who killed his own family in
what must have been a slow and painful death when they were
helplessly engulfed in flames which burnt almost every flesh of their
being. In order to ensure that nobody survived to tell
the tale
of his parents’ death, he had no difficulty in causing the
death of his sister and an innocent young girl in that
inferno.
I still find it very strange that amongst the deceased not a single
person was able to escape out of four people.
This was after
all, their own home in which they lived and they obviously knew their
way around that two roomed flat structure
they were sleeping in.
However, the accused has chosen not to open up about how he ensured
that not a single person would
be able to escape. He has not
said anything about his family’s death besides his denial about
his involvement in these
crimes.
Conclusion.
[13]
His personal circumstances are neither substantial nor compelling.
He is just a dangerous criminal whose cruelty knows
no boundaries.
He has absolutely no respect for human life, even that of his own
family members, not even his own niece,
a young child. In the
case of
Di
Blasi
[4]
the court expressed itself as follows:
“
The
requirements of society demand that a premeditated, callous murder
such as the present should not be punished too leniently
lest the
administration of justice be brought into disrepute. The
punishment should not only reflect the shock and indignation
of
interested persons and of the community at large and so serve as a
just retribution for the crime but should also deter others
from
similar conduct.”
[14]
Violent crime in this country has become uncontrollable. Where
police arrest suspects who, the evidence proves beyond
reasonable
doubt that they have in fact committed the offences and are
subsequently convicted, must be punished appropriately.
Retributive and deterrent purposes of punishment for serious crimes
have become indispensable tools in the administration of justice.
Courts must do what they need to do in appropriate cases and should
not flinch in imposing stiff sentences for serious crimes if
the
rampant criminality and the prevalence of violent crimes are to be
brought under control.
[15]
In the result the accused is sentenced as follows:
1.
In respect of
count 5 arson, the accused is sentenced to 5 years imprisonment for
burning the Kesa homestead at Teenbank, the home
of all the deceased.
2.
In respect of
count 3, the murder of his father, Mqondisi Patrick Kesa, the accused
is sentenced to life imprisonment.
3.
In respect of
count 4, the murder of his mother, Thubakazi Victoria Mbatyazwa the
accused is sentenced to life imprisonment.
4.
In respect of
count 1, the murder of his sister, Nobubele Hazel Kesa, the accused
is sentenced to life imprisonment.
5.
In respect of
count 2, the murder of his niece, O[...] H[...] K[...], the accused
is sentenced to life imprisonment.
6.
The accused is
declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State:
L. Pomolo
Instructed
by:
The Director of Public Prosecutions
Mthatha
Attorney
for the accused: O.N. Mankanku
Instructed
by:
Legal Aid South Africa
Mthatha
Date
heard:
14 February 2023
Date
delivered:
16 February 2023
[1]
S
v Zinn 1969 (2) SA 537 (A).
[2]
S
v Tsotetsi
2019 (2) SACR 594
(WCC) at page 604.
[3]
S
v Malgas 2001 (1) SACR 469 (SCA).
[4]
S
v Di Blasi
1996 (1) SACR 1
(A) at 10 f – g.