Cape Town - The defence lawyer for internationally acclaimed artist and murder accused Zwelethu Mthethwa on Tuesday applied to have the case reopened.
William Booth said the defence had received “very important” information since it closed its case earlier this month, and wanted to call prominent psychiatrist, Professor Tuviah Zabow, to testify.
Mthethwa is accused of kicking and beating to death 23-year-old sex worker Nokuphila Kumalo in Woodstock in the early hours of April 14, 2013. Booth told the court that Mthethwa had maintained during instructions that he could not recall the events of the 13th and 14th of April 2013.
All he could remember was that he was at The Corner Lounge in Gugulethu on the afternoon of April 13 where he paid for R2 016 worth of alcohol.
Booth, after receiving the new information, said he had approached Professor Zabow to assist with a psychological report.
Zabow consulted with the accused on November 9. Judge Patricia Goliath questioned the legality of introducing new evidence at this stage and said: “The accused elected not to testify. Are you squeezing in something new now that was not disclosed to the court?”
But Booth insisted the new evidence would be “in the interests of justice” as “the information that had now been obtained indicated that his (Mthethwa's) not being able to recall events had in fact occurred on previous occasions”.
He said the information had come from a person who was reluctant to testify because of the media attention the case has received. But State prosecutor Christenus van der Vijver said granting the application “would amount to gross irregularity”.
Zabow's report, that Van der Vijver had already received, had “no evidence of previous episodes of failure to recall events”.
Rather, Van der Vijver said the report stated “that Mthethwa's function of memory is intact”. “He has established where the shoe is pinching, and now wants to reopen the case.”
Van der Vijver said if Zabow testified, the State would object to its hearsay nature and its inadmissibility. “The accused did not come and testify about this. Now they want to introduce this through the back door. There are certain rules and procedures. Inadmissable evidence will be entered into the record. How can we get to the source of information, if the source sends in a messenger?”
Judge Goliath said Booth must present “a solid basis” for bringing the application, while the State needed to present its opposition: “I have no idea which way it's going. It's the legal question, if it is in fact hearsay evidence”.
The arguments will be heard on Monday. Mthethwa, who has pleaded not guilty to the murder, will remain out on bail of R100 000.
African News Agency