Judge questions whether murder-accused artist should have testified

2016-12-14 20:11
Zwelethu Mthethwa (Deon Raath, Netwerk24)

Zwelethu Mthethwa (Deon Raath, Netwerk24)

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Cape Town – As acclaimed artist Zwelethu Mthethwa’s murder trial drew to a close in the Western Cape High Court on Wednesday, questions were raised about his decision not to testify.

Both his lawyer, William Booth, and prosecutor Christhenus van der Vijver agreed during closing arguments that he had a right to remain silent, and doing so was not a sign of guilt.

A psychiatrist testified last week that Mthethwa had no recall of events that night, possibly due to alcohol consumption.

Mthethwa did not hand in a plea explanation or testify in his own defence.

Van der Vijver cautioned that if the case was not sufficiently answered, it could have certain consequences for Mthethwa.

Mthethwa has pleaded not guilty to killing sex worker Nokuphila Kumalo, 23, on April 14, 2013, in Woodstock. She is believed to have died of blunt force trauma.

He allegedly kicked her repeatedly. The State alleges he was caught on CCTV cameras as he parked his Porsche in Ravenscraig Road.

Booth said there was no onus on his client to explain why his car was in the vicinity at the time, since he was not charged with a traffic or road rage offence.

More serious charge

A surprised Judge Patricia Goliath said they were dealing with an even more serious charge of murder.

“He did not choose to take the court into his confidence to explain why his vehicle was there or who was driving the vehicle. In the face of that serious allegation, you are saying there is no onus on the accused to testify?”

Booth said much doubt had been raised about the car caught in CCTV footage, along with a contradiction of time between the footage and vehicle tracker records.

Booth reiterated concerns about the integrity of the footage.

The prosecutor countered there was no evidence of the footage being compromised.

On identification, Booth said: “How many millions of people fit the picture of the person in the video? At most you can say this is a person of colour, Indian, coloured or black, with short hair.”

No opportunity to protect

Since there were a number of people in the footage, and no holistic picture of what happened, it could not be inferred that the driver of the Porsche was the person who kicked Kumalo.

Van der Vijver said it was logical to conclude that the driver and kicker was the same person. One could not ignore the “similarities” between Mthethwa and someone in the footage.

“The moment she fell to the ground, she tried to come up in the crouching position and then the accused immediately gave her the first kick,” he said, clapping his hands together for effect.

She had no defensive injuries because she never had the opportunity to protect herself, he said.

Booth said there was doubt about whether she was still alive when the first kick landed. He reminded the court that the forensic pathologist had raised the possibility of “commotio cordis”.

Commotio cordis is an often lethal disruption of heart rhythm caused by a blow to the area directly over the heart.

“At most, whoever was doing the kicking and stomping, can be convicted of attempted murder.”

He submitted that the State had not proven its case beyond reasonable doubt and asked Goliath to acquit Mthethwa.

The prosecutor asked the court to consider the probabilities and evidence holistically. This was in the absence of an alibi or direct evidence.

“There is a lot that the accused could have said had he elected to come and testify. I would have expected the normal person to go and investigate what happened to their vehicle. You don’t sit [silently] in a court case for 18 months at a very high cost.”

What was curious for him was that Mthethwa failed to recall anything in that time, but was adamant that he did not commit the murder.

He said the only reasonable inference was that Mthethwa drove that car and intentionally killed Kumalo.

Goliath said it had been a marathon trial and she would need to deliberate. Judgment would be handed down on March 9.

 

Read more on:    zwelethu mthethwa  |  cape town  |  crime

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