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[2022] ZAECMHC 47
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S v Kesa and Another (CC19/2020) [2022] ZAECMHC 47 (2 December 2022)
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
:
[1]
The accused have been charged with the murders of the four deceased
persons all of whom are members of the Kesa household in
Teenbank,
Sterkspruit. The deceased in counts 3 and 4 are the father and mother
of the two accused persons. The deceased in count
1 is their sister
and the deceased in count 2 is their niece. They are also charged
with arson which is count 5 relating to the
burning of a home
belonging to the deceased members of the Kesa family which was burnt
down on that fateful early morning of the
22 July 2018.
[2]
Both accused pleaded not guilty to all the charges and elected not to
provide a plea explanation. The State called various witnesses
and
after it had exhausted them, it closed its case. At the close of the
case for the prosecution both accused who were legally
represented
throughout the proceedings made an application for their discharge in
terms of section 174 of the Criminal Procedure
Act 51 of 1977 (the
CPA).
[3]
Section 174 of the CPA provides as follows:
“
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may turn a verdict
of not
guilty.”
[4]
The evidence of the State was of a circumstantial nature as nobody
knew how the fire that led to the death of the deceased started.
The
State called to the witness stand its first witness Mr William Kesa
who testified that he was 80 years old at the time he testified.
He
knows, the two accused persons as they are both the sons of the
deceased in counts 3 and 4, Mr Mqondiso Patrick Kesa and his
wife
Thubakazi Victoria Mbatyazwa both of whom are his brother and sister
in law respectively. He explained that the deceased in
count 1,
Nobubele Hazel Kesa is the daughter of Mr and Mrs Kesa and the
deceased in count 2, Olwami Hillary Kesa is the daughter
of the
deceased in count 1 and the granddaughter of the deceased in counts 3
and 4. In short, the accused are charged with the
wiping out, in one
day, of their own family, their own parents, sister and niece.
[5]
The evidence of Mr William Kesa was that the relations between the
accused persons and their parents were seriously strained
to the
extent that their issues were at some stage taken to the small claims
court. There was an issue of a sum of R800.00 or so
which the
deceased in counts 3 and 4 had given to the accused to buy some
building material but which the accused apparently squandered.
He
intervened in that dispute as a result of which the case was removed
from the small claims court and an attempt was made to
resolve it at
home amicably. However, when the resolution of the issue or
misunderstanding failed as the accused had apparently
taken more
money from their parents without permission, his brother, the late
Mqondiso Kesa indicated that he was obtaining a protection
order
against the accused. It was that protection order that lead to the
two accused person leaving their home at Teenbank to stay
at his
elder brother’s house where the only person who stayed there
was that brother’s young daughter at Kromspruit
about 10
kilometres or so from Teenbank.
[6]
He received a phone call from the accused asking for the keys for his
elder brother’s homestead at Kromspruit. At some
point shortly
thereafter he went past his elder brother’s homestead and found
the accused already there inside saying that
Nopopi, his elder
brother’s granddaughter had opened for them. However, Nopopi
was not there. He left going to his own homestead
and on the way he
received another phone call from the accused. They asked him not to
tell their father that they were at his elder
brother’s
homestead at Kromspruit. He, in any event, told their father that the
accused were at his elder brother’s
homestead at Kromspruit.
[7]
With regard to the events of the 22 July 2018, the date on which the
deceased died during the burning of their homestead, Mr
William Kesa
testified that he received a phone call from his niece informing him
that his brother Mqondiso’s homestead was
on fire. This was at
about 05h00 in the morning. He got into his vehicle and proceeded to
the deceased’s homestead. On his
arrival there indeed the place
was on fire and engulfed in smoke. There were already many people
there and he was told that the
fire started at about 02:00 in the
early hours of the morning. He found that everything had burnt down
including the people who
lived there, the four deceased persons and
he somehow managed to identify the deceased persons.
[8]
The cleaning up of the crime scene was started after the police had
finished doing their work and had released it to the family.
This
cleaning up process revealed a sponge which when it was lifted up,
had blood dripping from it. He testified that the accused
persons
were not where the incident occurred. In fact, they were at his elder
brother’s homestead in Kromspruit. A young
man was told to
phone the accused persons. Indeed, he phoned them to tell them about
the incident and that their father’s
homestead had been set
alight and that they should come. This young man was from the Tiyane
clan which is the accused’s mother’s
side of the family.
The accused did not come. They then decided to drive to Kromspruit to
fetch them from his elder brother’s
homestead. They brought the
accused to the deceased’s homestead. However, as the Kesa and
Tiyane families they were mind
boggled by the incident because as the
incident occurred on 22 July 2018, the accused were supposed to go to
court on the 27 July
2018 in connection with the protection order
that their deceased parents had obtained against them. When the
accused were questioned
by family members, accused no.2 admitted that
indeed they were supposed to go to court on the 27 July 2018 but
accused no.1 would
not admit that.
[9]
A decision was taken to drive to Kromspruit where the accused stayed
at the time of the incident. He drove there together with
the police.
The homestead was searched. After searching the house, the police
went to the toilet which was behind the house. This
is where the
police found what Mr William Kesa called an overall with blood stains
which appeared to have been washed but the blood
stains had not
washed off properly. When the accused were asked as to whom that
overall belonged, both of them did not know and
even said that it was
of a bigger size for them. However, the accused admitted staying in
that homestead. The accused were arrested
by the police.
[10]
Under cross examination Mr William Kesa confirmed that he never went
to court to listen to the proceedings concerning the quarrel
or
dispute between the accused and their parents concerning the money
which was to be used to buy building material. He confirmed
that both
accused left the deceased’s home consequent upon the protection
order having been issued against them. They left
during July but
before the 22 July 2018. It was put to him that accused no.1 denied
being called telephonically and informed about
the burning of his
homestead but confirmed being fetched by Mr Kesa. Mr Kesa insisted
that they were called and they said they
would come. They waited for
them but upon realizing that the accused were not coming they decided
to fetch them. He testified that
the cleaning of the crime scene only
took place after the accused had been fetched and had arrived.
However, the police had already
left when the cleaning took place.
The person who picked up the sponge that had blood dripping from it
was one of the people from
the funeral parlour. He denied that
accused no.1 participated in the cleaning and insisted that the
cleaning was done by people
from Golding Funeral Parlour.
[11]
When the sponge was discovered he called the police who came back
again. That sponge was thrown away after the police had looked
at it
and went away. The police did not take the sponge with them or any
portion thereof. He confirmed that sergeant Mda and other
officers
whose names he did not recall saw the sponge that had blood dripping
from it. He testified that there was no blood on
the floor. Blood was
in the sponge and there were ashes around the area where the sponge
was. He testified that the overall that
was found in the toilet was
not inside the pit of the toilet but was inside the toilet. He had
never seen accused no.1 wearing
the said overall before. The overall
was taken away by the police. Mr Kesa confirmed that the police took
away a tracksuit pants
which he also called the bottom of the
overall. He confirmed that the version of the accused that it did not
have blood was true
but said that it did have some blood stains which
appeared to have been washed but the stains were still visible. He
testified
that what he said about the tracksuit pants being found not
inside the toilet pit but inside the toilet was how it was reported
to him but he was in the house when it was found. Therefore, he did
not dispute accused no.1’s version that it was found
inside the
toilet pit. He did not see it when the police retrieved it.
[12]
when he was cross examined by the legal representative for accused
no.2, Mr Kesa confirmed that he did not know the truthfulness
of what
the accused’s mother said to him as he was not there when she
gave him the money for the building material. He testified
that when
they arrived with the accused at Teenbank where the incident had
occurred, accused no.2 cried upon seeing the situation.
However, when
he was told earlier at Kromspruit he did not show any reaction to
what he was told.
[13]
The next witness for the State was sergeant Mda. He confirmed that on
22 July 2018 he attended the crime scene in this matter.
He found
dead bodies in a two roomed flat structure which was in the process
of being extended. The first body was next to where
he thought the
wardrobe might have been because of the pieces of plank or wood that
were there. The three other bodies were next
to the window. The
bodies were so badly burned that some body parts or limbs were
separated from the bodies. The LCRC officers
did their work and the
forensic pathology people removed the remains of the deceased. The
crime scene had a lot of water which
was caused by the members of the
community who were trying to extinguish the fire. After the bodies
had been taken away he and
his colleagues also left. However, at
about 17:00 on that same day he received a call from one Mr Socatsha
who requested them to
return to the crime scene because some blood
had been discovered during the cleaning of the place. He returned to
the crime scene
with his colleague, Mr Belebesi and they were shown
the spot where there was blood. Indeed, he saw what looked like blood
in a
burnt mat or floor rug. When he lifted the mat he could only get
a piece of it. When he did all of that he was wearing protective
hand
gloves. He put that piece of mat or rug with other things he found
there in a plastic bucket as they were wet and therefore
could not be
placed in a forensic bag at the time.
[14]
He was also shown the two accused persons who were not there earlier
when he had visited the crime scene for the first time.
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 where they stayed and they said they
stayed at Kromspruit. He asked them when was the last
time they were
at the homestead where the incident occurred and they said they had
been there three weeks earlier. They told him
that they left because
of a misunderstanding with their parents which led to them being
expelled from home. Accused no.1 told him
that they were the ones who
built the incomplete structure and that their mother had given them
money for the building of the structure
which they had squandered
leading to them being expelled which was why they stayed at
Kromspruit.
[15]
He told them that he was investigating the killing of their parents.
Because of the blood stains he observed on the strings
of the hood of
accused no.1 he asked him to give it to him. Indeed, accused no.1
gave him the hood which he placed in a sealed
evidence bag in their
presence. The serial number for that evidence bag was PA 4002561679.
He asked the accused to come with him
to go and search at Kromspruit
where they were staying. They agreed to come with him. Some family
members followed them to Kromspruit.
The accused opened for them on
their arrival. He requested the family members not to enter the house
but to remain outside so that
they could do their police work
properly. They searched the house and found a pair of jean trousers
which had blood. The search
took place in the presence of the
accused. After they finished searching inside the house they searched
around the premises in
the yard. They also went to the toilet that
was in the premises.
[16]
He peeped through the toilet pit and saw tracksuit pants. Its upper
part was still dry but its bottom was wet. He could see
that the
wetness was still fresh and it did not look like it had been there
for a long time. He took both the pair of jeans and
the tracksuit
pants with him to the police station. He decided to arrest the
accused. Because the lower part of the tracksuit pants
was wet, he
dried it and thereafter packed them in evidence bags. He kept them
safe in his custody ensuring that they were not
tampered with. He had
requested the forensic pathologist to take blood samples from the
bodies of the deceased. He received those
blood samples sealed and
took them to their laboratory in Port Elizabeth after he had made all
the relevant entries in their SAP13
register. The DNA samples which
he received from the forensic pathologist were contained in sealed
evidence bag number PA4007561855,
PA4001790278, PA4002561856. The
nike grey tracksuit pants recovered from the toilet was in sealed bag
number PA4000876235. The
brown jacket was in evidence bag number
PW3000344503. This is the one that was recovered in the house at
Kromspruit. The tracksuit
top was in sealed bag number PA 4002561679.
This is the one he took from accused no.1. The pair of jean trousers
was in bag number
PA4002561853 which was recovered in the house at
Kromspruit. There was also one blood kit in bag number PA4001825929.
He took all
these items to the laboratory in Port Elizabeth. The
SAP13 register with all these details was admitted into the evidence.
The
acknowledgment of receipt of the delivery of the sealed evidence
bags was also exhibited in court as exhibit “C”.
[17]
Under cross examination sergeant Mda testified that when he went to
the crime scene for the second time he saw a piece of mat
or floor
rug and that Mr Kesa must have been mistaken in his evidence when he
spoke of a sponge as there was no sponge there. He
further clarified
that Mr Kesa was mistaken in referring to the discovery of an
overall. What was in fact recovered us a nike tracksuit
pants which
was recovered from inside the toilet pit. He further testified that
the cleaning was done by family members and the
accused did not
participate in the cleaning. He further insisted that what he
testified about in court concerning the reasons why
the accused left
their home at Teenbank was what accused no.1 told him. He disputed
that he put the jacket in the load bin of his
vehicle and insisted
that he put it in evidence bag in their presence. He further
testified that he took buccal samples from both
accused and sent them
for DNA analysis. He testified that some of the results of the DNA
analysis revealed that the blood from
the pair of jean trousers
matched the DNA of the accused no.2. Further cross examination of
sergeant Mda did not take the matter
any further.
[18]
The next witness for the State was Sakhele Njadu. His evidence was
that he is employed as a clerk of the court in Sterkspruit.
In July
2018 in his capacity as such he dealt with criminal cases, small
claims cases as well as domestic violence cases. On 20
July 2018 he
had occasion to attend to the two accused persons. On that date it
was the return date of a complaint that had been
lodged by the
accused concerning money. The accused told him that they wanted to be
paid for services they had rendered at their
home in building a
house. They were demanding an amount of about R20 000.00. He
called their parents into his office so that
the complaint could be
dealt with. It was accused no.1 who was doing most of the talking.
When their parents came into the office
they were with a young girl
whom they said was their daughter. Accused no.1 said that they must
be paid because even if it was
another builder who had built the
house he would have been paid. His mother said that if they wanted to
be paid they would have
to pay back all the money they spent in their
traditional circumcision ceremony.
[19]
Accused no.1 became so agitated and was overwhelmed with anger and
accused their mother of being difficult, with an evil heart,
of being
cruel and being a witch. Because of the exchanges that were taking
place he requested them to leave the office. At that
stage accused
no.2 spoke to accused no.1 saying that they must leave together.
Before they could leave accused no.1 uttered words
to the effect that
they must be told if they would get the money so that if they were
not going to get it they could devise means
of getting it. When
accused no.1 uttered those words he was angry and rude to his mother
and his impression was that he was threatening
her. That was the last
time he had to deal with the accused persons.
[20]
Under cross examination Mr Njadu confirmed that it was accused no.1
who did most of the talking. It was put to him that accused
no.1
denied that he was the one who attended to them and their parents on
that day saying that he was only involved in the case
of the
protection order. Mr Njadu insisted that he never dealt with the
accused persons on the issue of the protection order. He
only dealt
with them in respect of the issue of the small claims case. Mr Njadu
further insisted that the accused were demanding
R20 000.00
payment from their mother. He further insisted that accused no.1 did
accuse their mother of being evil, cruel and
a witch and that he did
say that their mother must tell them if she would pay them or not so
that they could make other ways of
getting the money from her.
[21]
It was put to Mr Njadu that accused no.1 did not demand money from
their parents in the presence of the other official. He
merely
informed that other official, not Mr Njadu that their mother had
promised to pay them for building the house and that they
wanted her
to make good on that promise. Mr Njadu insisted that he was the
official who attended to the accused’s small claims
case. Mr
Njadu further testified that during that meeting in his office on the
20 July 2018 accused no.2 was quiet and accused
no.1 was doing the
talking. Accused no.2 merely said that they must leave. He confirmed
that accused no.2 was trying to stop his
brother and preventing the
situation from escalating. Accused no.1 and his mother were talking
over each other in high voices at
the time. Mr Njadu testified that
the only other official present in his office was an intern who did
not attend to members of
the public. That intern did data capturing
in respect of domestic violence files in her computer.
[22]
The next witness for the State was Sinentlahla Kesa. Her evidence was
that she was 21 years and resided at Kromspruit in Sterkspruit.
She
knows both accused as they are from the same family as herself. In
July 2018 she was at Kromspruit when accused no.1 arrived
asking for
the key for a house in her home in which nobody stayed. At the time
nobody stayed there as she had left to stay with
her other family
because she had a little baby. Accused no.1 further indicated that
the following Monday they would be going to
court. On another Monday
she was approached by police asking her if she knew a particular grey
tracksuit. She confirmed to the
police that that tracksuit belonged
to accused no.1 as she usually saw him wearing it. When the police
approached her the accused
had been staying at her home for about a
week. The said tracksuit was actually a tracksuit top. It was put to
Sinentlahla that
accused no.1was saying he indeed got the key from
her at the place where she was staying but they never stayed with her
at her
home and she confirmed the accused’s version in this
regard. It was further put to her that accused no.1 denied owning the
tracksuit. Sinentlanhla testified that she did see him wearing it.
She would see him wearing the same tracksuit because when she
went to
her boyfriend’s place see would walk past her home in which the
accused stayed at the time. She would see him wearing
it. Even when
her grandmother was being buried, accused no.1 was present and
wearing the said tracksuit. She explained that the
funeral she was
referring to was not the funeral of the four deceased persons in this
case. She was referring to the funeral of
her direct grandmother. She
insisted that accused no.1’s denial of his knowledge of the
tracksuit was a lie.
[23]
Sergeant Mda was recalled for further cross examination by Mr Gxaba
who previously represented accused no.1. During the said
further
cross examination, it was put to him that accused no.1 had been asked
by Mr Kesa to clean the floor. As he was doing so
he saw something
that looked like blood. Sergeant Mda disputed this as lies. It was
further put to him that if there was any blood
in accused no.1’s
clothing it would have gotten there when he participated in the
cleaning. Sergeant Mda denied this saying
that after he was told that
a blood like substance had been found on the floor he told Mr Kesa
and others to stop the cleaning
process. It was further put to him
that the tracksuit top hood strings were stained by a maroon roof
paint. Mr Mda maintained that
that was not true. What he saw in those
tracksuit top hood strings was blood stains which was why he
confiscated it from him.
[24]
The next witness for the State was Dr Jwaqa. He testified that on 24
July 2018 he performed autopsies on four bodies of the
deceased who
had sustained 100% burns. He testified that the said bodies had
burned so severely that they were beyond recognition.
He completed a
medico legal report on each of the bodies. He further testified that
burned bodies do not bleed, they do not lose
blood, they lose fluid.
He explained that the presence of blood would indicate another cause
for the bleeding as burned bodies
do not bleed.
[25]
The last State witness was warrant officer Francis-Pope. She
testified that she works at the SAPS biology unit in Cape Town.
On 29
July 2019 she attended to the analysis of four reference samples,
being two from the deceased persons and another two from
the two
accused persons and completed a report. Her findings were that the
blood that was found in the pair of jean trousers was
accused no.2’s
own blood and not that of any of the deceased persons. The DNA found
in the tracksuit pants was from an unknown
male person. She had
requested that reference samples from the deceased in count 3, Mr
Mqondiso Kesa and the deceased in count
1, Ms Nobubele Kesa be
obtained for comparison purposes from their biological relatives.
However, that did not happen. Therefore,
with the samples that she
had, the only positive conclusion she could make was that the DNA of
Thomokazi Kesa which is the deceased
in count 4 whose reference
sample was in the evidence bag with reference number PA4002561855 was
read into the possible blood found
in the tracksuit top with evidence
reference number PA4002561679. Therefore, the blood in the tracksuit
top strings confiscated
from accused no.1 was that of his mother, the
deceased in count 4. With this last witness, the State closed its
case.
[26]
The evidence of the witnesses who were recalled at the instance of
accused no.1 did not take the matter any further or add
any value
either way save to confirm what had already been testified about in
some respects. With the State’s case having
been closed both
accused made applications for their discharge in terms of
section 174
of the
Criminal Procedure Act. The
legal position with regard to an
application in terms of
section 174
was stated in the case of
S v
Lubaxa
2001 (2) SACR 703
(SCA) at 707 as follows:
“
[18]
I have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close of the
case
for the prosecution if there is no possibility of a conviction other
than if he enters the witness box and incriminates himself.
The
failure to discharge an accused in those circumstances, if necessary
mero motu
,
is in my view a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively
upon his self-incriminatory evidence.
[19]
… Clearly a person ought not to be prosecuted in the absence
of a minimum of evidence upon which he might be convicted,
merely in
the expectation that at some stage he might incriminate himself. That
is recognized by the common law principle that
there should be
‘reasonable and probable’ cause to believe that the
accused is guilty of an offence before a prosecution
is initiated
(
Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A)
at 135 C–E), and the constitutional protection afforded to
dignity and personal freedom (s 10 and s 12) seems to reinforce
it.
It ought to follow that if a prosecution is not to be commenced
without that minimum of evidence, so too should it cease when
the
evidence finally falls below that threshold. That will pre-eminently
be so where the prosecution has exhausted the evidence
and a
conviction is no longer possible except by self-incrimination. A fair
trial, in my view, should at that stage be stopped,
for it threatens
thereafter to infringe other constitutional rights protected by s 10
and s 12.”
[27]
On the consideration of the evidence presented by the State, the case
against accused no.2 is at best, weak. The only way that
that picture
could potentially change is if he enters the witness box and
incriminates himself. As the Supreme Court of Appeal
stated in
Lubaxa
, this is impermissible. In all of the evidence of the
State, there is nothing that points to accused no.2’s
participation
in the arson that took place or any of the events which
might have led to the death of the deceased on the basis of which a
court
acting reasonably might convict him. The fact that he, like
accused no.1, also had a motive for killing the deceased does not
amount
to evidence that he might have done so.
[28]
However, the same cannot be said about accused no.1. For instance,
there is evidence of blood having been found in the flat
roofed
structure that was razed to the ground and in which the deceased
died. The evidence of Dr Jwaqa was that burnt bodies do
not bleed.
This means that the blood found at the crime scene could have been
from the bleeding that happened before the deceased
burned to death.
The tracksuit top hood strings which accused no.1 was wearing had
what looked like blood according to the evidence
of sergeant Mda. The
evidence of warrant officer Francis-Pope was that indeed that blood
like substance found in those strings
of accused no.1’s
tracksuit top was the blood of his own mother, the deceased in count
4. The possible blood found in the
tracksuit pants could not be
matched with any of the deceased. However, it was established that it
was blood from a male person.
The only male person in that burnt
house was the deceased in count 3, the father of the two accused, Mr
Mqondiso Kesa. All of this
evidence cannot be ignored. Clearly
accused no.1 has a case to answer and if he so testifies, his
evidence may very well lead to
his acquittal depending on the
evaluation of all the evidence including his own and that of any
witnesses he may choose to call
to testify on his behalf.
[29]
The insufficiency of the State’s evidence against accused no.2
which falls far below the minimum threshold must lead
to the
inescapable conclusion that he must be acquitted and discharged. It
would be plainly incorrect and contrary to the established
principles
of our criminal jurisprudence not to discharge him despite the
weaknesses of the State’s evidence against him
in the hope that
he might supplement it by means of self-incrimination. The suspicions
about accused no.2’s complicity to
the crimes committed do not
amount to evidence on which a court can convict him.
[30]
In the result, I make the following order:
1.
Accused
no.2’s application to be discharged in terms of
section 174
of
the
Criminal Procedure Act is
granted on all counts and he is
accordingly acquitted and discharged.
2.
The
application by accused no.1 to be discharged in terms of
section 174
of the
Criminal Procedure Act is
refused.
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
Counsel
for accused no.2: J. Slabbert
Instructed
by: Legal Aid South Africa
Gqeberha
Date
heard: 30 November 2022
Date
delivered: 02 December 2022