Expert witnesses believe that Zwelethu Mthethwa, the artist convicted of the murder of Nokuphila Kumalo, a sex worker, does not need to spend time in prison.
The defence’s two witnesses, clinical psychologist Martin Yodaiken and social worker Anne Cawood, testified today in the Western Cape High Court on the first day of sentencing proceedings.
Both emphasised that if sent to prison, Mthethwa would be unable to support family members and would not be able to contribute to society.
The maximum non-custodial sentence is five years. The minimum sentence for murder with intent, in the form of dolus eventualis, which Mthethwa was convicted of, is 15 years. However, this can be reduced if there are mitigating circumstances.
Appearing in a lime turtleneck and a dark jacket, 57 year old Mthethwa, who had his bail revoked after being convicted, sported a greying beard for the first time.
Yodaiken said that a prison sentence would “deprive” society of the contribution that he could make.
He said that although “retribution needs to be paid to society for what was done, that retribution can also deprive society of his value”.
Yodaiken instead believed that a “restorative justice process” could be appropriate. Part of this process could involve a monetary contribution to Kumalo’s family. He said that Mthethwa was “held in high regard” and was a “significant ambassador to South Africa”.
Prosecutor Christenus van der Vijver said that Yodaiken was “completely overestimating” Mthethwa’s personal circumstances and almost ignored the aspect of punishment.
Van der Vijver asked whether Yodaiken “could seriously say” that a five year non-custodial sentence was adequate given the nature of the crime.
“Do you know that women and children are the most vulnerable members of society?” he asked him during cross-examination.
Earlier in court Yodaiken had explained that while Mthethwa displayed narcissistic personality traits, as well as obsessive compulsive features, Mthethwa had used his personality in a positive way.
Yodaiken said that the mother of Mthethwa’s never knew him as violent. She said that when Mthethwa got into an argument he would walk away and give you the “silent treatment”.
Yodaiken said that Mthethwa’s current girlfriend of ten years, had also said that he had never been aggressive to her and was kind and generous.
Referring to the attack, his girlfriend had said that “he is not that person”.
“To me he is not capable of doing something like this. The Zwelethu I know would never lay a hand on a man, let alone a woman,” she said.
“He appears to be a person with a great deal of respect towards woman,” said Yodaiken. “There is no evidence to suggest that he had a misogynistic view towards females.”
Yodaiken emphasised Mthethwa’s relationship with alcohol and pointed to a number of people close to him who had spoken of his drinking habit. Yodaiken explained how blackouts work and how Mthethwa could have no memory of the night of the murder.
He said that typically when someone was lying evidence of this would “leak into their narrative” something which Yodaiken said had not happened.
As for the violent attack itself, Yodaiken said that it was an “excessively violent attack” that lasted longer than a normal round of boxing. He said that not only did the attack appear personal but was also used as a means to dissipate rage.
When compared to what others said about him, it seemed that something so significant had happened that night that his personality had been “transformed”.
Yodaiken said that there was the need to “safeguard against the effects of drinking” and that Mthethwa has acknowledged his drinking problem.
Yodaiken said that when he asked Mthethwa whether he committed the crime he said that he “I don’t know”.
Both witnesses appeared to reject the court’s finding that Mthethwa fabricated his memory loss.
Yodaiken said that he was “not questioning the court” but that rather he spoke of his findings.
However, prosecutor van Der Vijver said that Yodaiken was “very subjective”
He drew both witnesses attention to the fact that only at a very late stage in the proceedings was an application brought to reopen the case and the “whole aspect of memory loss was introduced”.
Cawood, who met with Mthethwa twice before writing her report, said that he expressed compassion regarding the loss of Kumalo’s life but had “no memory of having anything to do with it”.
She emphasised mercy and said that the crime was “totally out of character for Mr Mthethwa”. She said that “all options for a non-custodial sentence must be canvassed”.
When asked about the crime itself, she said that she was told that the footage was grainy and that it was unclear. She also said that there were a “whole lot of inconsistencies” in the case. At this, Van Der Vijver said that she was “really overstepping her mandate. He said that she was “so subjective” that she was “of no assistance to the court” and that she was “so set on helping the accused” that she would “take every gap to say the court was wrong”. He said that she was the most subjective expert witness that he had seen in “many years”,
Van der Vijver said that if Mthethwa is just given a non-custodial sentence “it will not deter others” as “they will always refer to Mr Mthethwa who got a slap on the wrist [and got to] go home”.
Sentencing proceedings will resume on Monday at 9am. – GroundUP