Activists demonstrate outside the Western Cape High Court today where artist Zwelethu Mthethwa was found guilty of the murder of sex worker Nokuphila Kumalo. Photo: Ashleigh Furlong
16 March 2017
Artist Zwelethu Mthethwa has been found guilty of the murder of Nokuphila Kumalo, a sex worker. Kumalo was murdered in the early hours of the morning on 14 April 2013 in Woodstock. Delivering her verdict, Deputy Judge President of the Western Cape High Court Patricia Goliath described on Thursday how Kumalo was kicked and stamped on, saying that forensic evidence showed that her liver was “virtually torn in half” and some of her ribs were fractured.
Delays have marked the marathon trial in the Western Cape High Court, which has featured the almost constant presence of activists from the Sex Workers Education and Advocacy Taskforce (SWEAT).
“We want this to be a warning to other people who might hurt or abuse sex workers, that it will not be tolerated,” said Sally Shackelton, director of SWEAT.
Goliath also withdrew Mthethwa’s bail, though the state did not oppose bail being granted. Mthethwa has previously been out on R100,000 bail.
“Once a person is convicted of a serious offence, the presumption of innocence falls away,” said Goliath. She said that it was “in the interests of justice” that bail be withdrawn.
“The state has proved the guilt of the accused beyond a reasonable doubt,” she said during her judgment. Goliath said that the court was satisfied beyond reasonable doubt that the accused foresaw that death would ensue when he attacked Kumalo. She therefore found Mthethwa guilty of murder with intent in the form of dolus eventualis.
The two vital pieces of evidence in the case were the CCTV footage of part of the assault and Mthethwa’s Porsche 911 Carrera vehicle tracker.
Prosecutor Christenus van der Vijver had argued that the driver of the vehicle seen in the CCTV footage was the person who attacks Kumalo and kills her in the CCTV footage. Advocate William Booth for the defence had tried to argue that the driver of the vehicle and the attacker, who was dubbed the “kicker”, could be different people.
Goliath rejected this, saying that this assertion was “highly improbable” and “farfetched”. She said that while the court had to exercise caution, common sense shouldn’t be displaced.
“The similarities between the assailant and the accused are remarkable and considering the similarities between the two, on the probabilities, the only reasonable inference is that the accused was the driver of his vehicle at the time,” she said.
The defence had also argued that the CCTV footage was not reliable and should be ruled inadmissible. This too was rejected by Goliath. She said that the defence had attacked the method used to secure the footage but that the potential problems with the footage were “mere speculation”. She also said the defence had never brought an expert to determine the authenticity of the footage.
“The defence failed to show that the footage was altered, deleted or tampered with in any way. For these reasons the footage is found to be authentic.”
Goliath explained that the state didn’t have to prove beyond any shadow of a doubt that the accused was guilty. The state just had to prove beyond a reasonable doubt. She also emphasised that evidence needed to be assessed in its “totality”.
During the trial, the man who had sold Mthethwa his Porsche testified to the similarities between the Porsche in the footage and the customised one he had sold Mthethwa in 2012.
The vehicle tracker showed that Mthethwa’s car was in the vicinity of the murder. Goliath said that even the expert called in by the defence regarding the tracker evidence “didn’t significantly alter the location” of the vehicle. The car’s vehicle tracker showed that his vehicle was stationary in the street for six minutes, the same length of time as the incident in the footage. While the timestamps of the tracker and the footage differ, Goliath said that the “evidence was incontrovertible that the vehicle in question is that of the accused”.
Mthethwa didn’t take the stand to describe what happened on the night and morning of the murder. Before the murder, he spent the evening at the Corner Lounge in Gugulethu. His defence brought in a psychiatrist in an attempt to prove that he didn’t have any recollection of the events.
Goliath made much of Mthethwa’s refusal to testify. She said that because Mthethwa didn’t testify he couldn’t corroborate the psychiatrist’s testimony. Citing previous case law, Goliath said that where a question arose about the accused state of mind, it was difficult for the court to come to any conclusions unless the accused gave evidence.
She said the silence of the accused and the court’s inability to assess Mthethwa’s account, rendered the psychiatrist’s evidence of “no value”.
The fact that there was “no obligation” for an accused to testify, did not mean that this did not have consequences, she said.
She said that while Mthethwa had said at the time of his arrest that he would speak in court, when the opportunity had presented itself, “he failed to do so”.
His failure to take the court into his confidence meant that he could not explain to the court how someone else could possibly have driven his car. “As a result of his failure to testify there is no evidence as to whereabouts of accused at relevant time”.
Even if he didn’t recall the events, she said, he could have assisted the court in referring to various incidences of memory loss.
“The only reasonable inference to be drawn that accused’s version is untruthful and fabricated,” she said.
Amid sounds of jubilation outside court, Shackelton told GroundUp that SWEAT was elated that “for once justice was done”.
She said Mthethwa was a “well-resourced man” who not only wasted the court’s time but also wasted the time of the “hardworking activists who were outside the court throughout this process”.
“We are continuing our campaign to make sure there is justice in other cases where perpetrators have not been found.”
Duduzile Dlamini, an organiser for Sisonke sex workers’ movement, said that the verdict was “the first step” in the fight for justice for sex workers who were attacked and killed. “I hope the sentence for Mthethwa will be a massive warning for other clients, not even to try to kill a sex worker,” she said.
She said Sisonke would continue to advocate the decriminalisation of sex work “because that is when we will be free”.
“We are not yet satisfied, because we have lots of cases where the perpetrators are not even arrested,” she said.
Sentencing is set for 29 March.