S v Kesa and Another (CC19/2020) [2022] ZAECMHC 47 (2 December 2022)

S v Kesa and Another (CC19/2020) [2022] ZAECMHC 47 (2 December 2022)

The court found that the State's evidence against accused no.2 was insufficient and fell far below the minimum threshold required for a conviction. There was no direct or circumstantial evidence linking accused no.2 to the murders or arson, and the only way a conviction could be obtained would be through self-incrimination, which is impermissible. In contrast, the evidence against accused no.1 included forensic findings of his mother's blood on his tracksuit top and unexplained blood at the crime scene, which, when considered with motive and opportunity, established a prima facie case requiring him to answer the charges. Accordingly, accused no.2 was discharged on all counts, while...

Citation
[2022] ZAECMHC 47
Parties
Applicant: The State; Respondent: Thobani Kesa; Respondent: Ntembeko Kesa
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
2 December 2022
Case Number
CC19/2020
Procedural Posture
Criminal Trial / Section 174 Application After State Case Closed
Outcome
Accused no.2 is acquitted and discharged on all counts under section 174 of the Criminal Procedure Act. Accused no.1's application for discharge is refused; he must answer the charges.
Judges
M.S. Jolwana
Legal Topics
Section 174 Discharge, Murder, Arson, Dna Evidence, Circumstantial Evidence
Criminal Law Section 174 Discharge Murder Arson Dna Evidence Circumstantial Evidence

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Parties

The State

Applicant

Thobani Kesa

Respondent

Ntembeko Kesa

Respondent

Procedural Posture

Criminal Trial / Section 174 Application After State Case Closed

Legal Issues

  1. 1 Whether the State has presented sufficient evidence to establish a prima facie case against each accused for murder and arson.
  2. 2 Whether accused no.2 should be discharged under section 174 of the Criminal Procedure Act due to lack of evidence.
  3. 3 Whether accused no.1 should be discharged under section 174 or required to answer the charges.

Ratio Decidendi

The court found that the State's evidence against accused no.2 was insufficient and fell far below the minimum threshold required for a conviction. There was no direct or circumstantial evidence linking accused no.2 to the murders or arson, and the only way a conviction could be obtained would be through self-incrimination, which is impermissible. In contrast, the evidence against accused no.1 included forensic findings of his mother's blood on his tracksuit top and unexplained blood at the crime scene, which, when considered with motive and opportunity, established a prima facie case requiring him to answer the charges. Accordingly, accused no.2 was discharged on all counts, while...

Court Disposition

Accused no.2 is acquitted and discharged on all counts under section 174 of the Criminal Procedure Act. Accused no.1's application for discharge is refused; he must answer the charges.

Orders

  • Accused no.2's application for discharge under section 174 of the Criminal Procedure Act is granted on all counts; he is acquitted and discharged.
  • Accused no.1's application for discharge under section 174 of the Criminal Procedure Act is refused.