Cape Town – Convicted murderer and internationally acclaimed artist Zwelethu Mthethwa made an application for bail in the Western Cape High Court ahead of sentencing proceedings next month.
Defence lawyer William Booth asked the court to release his client on bail so that he could get his personal affairs in order pending his sentence: "He needs to make long term arrangements for all aspects of his life".
Booth argued that experts that have been contacted for pre-sentencing reports battled to gain access to Pollsmoor prison: "The tragedy of Pollsmoor is that its impossible to go there and properly consult. It makes it so difficult to prepare a proper argument, even more so with experts."
On March 16, the Western Cape High Court found Mthethwa guilty of murder with intent in the form of “dolus eventualis” for the 2013 “vicious assault” of 23-year-old sex worker Nokuphila Kumalo.
Judge Patricia Goliath accepted crucial CCTV footage which captured the kicking and beating of Kumalo in the early hours of April 14 in Ravenscraig Road, Woodstock.
Describing it as a “silent witness”, she said CCTV footage had become crucial in the collection of evidence and the finding of truth in criminal cases.
She said the case had been based largely on circumstantial evidence that she had weighed up “holistically”.
Goliath found that the attacker and the driver of the Porsche 911 Carerra vehicle, seen in the footage, were indeed the same person.
She revoked his R100 000 bail and said "once a person is convicted of a serious offence it is so that the presumption of innocence falls away".
But, Booth argued on Wednesday that Mthetwa had never violated his bail conditions, and was not a flight risk nor a danger to society.
He submitted an affidavit by Mthethwa as well as a number of documents, "some from as far afield as America", regarding character references.
Booth asked Judge Patricia Goliath to consider imposing more stringent bail conditions and even house arrest, with a bail amount of R200 000 so that his 57-year-old client could make arrangements for both his work and personal life.
He told the court that Mthethwa had a 15-year-old daughter who he would would like to formally inform of his conviction.
The teenager lives in England with her mother and Mthethwa supports her financially. He said Mthethwa lives in a Cape Town apartment valued at R5 million and has a Porsche with outstanding installments.
Booth also told the court Mthethwa remains a registered artist at the Jack Shainman gallery in New York where his art is sold worldwide.
He said Mthethwa needed to secure paintings from his Adderley Street studio and safely store them for the duration of his incarceration.
He also needed to make arrangements for his "gluten intolerant condition". "The testimonials show a person who has a great ability to contribute to society. He is held in high regard from people of all walks of life", Booth told the court.
"His paintings are being exhibited not just in South Africa but all over." Booth said several million rand was at risk as Mthethwa also needed to make arrangements in the event art works were sold while he is in prison.
But, senior state prosecutor Christenus van der Vijver opposed the application, asking the court to dismiss it: "Its obviously no longer business as usual."
"The central theme of this application is the inconvenience for Mr Mthethwa in getting his affairs in order. And the fact that he is a good person is not really a relevant factor at this point in time".
Van der Vijver also asked how many people had seen "the absolute brutality with which the deceased was kicked and stomped to death".
He suggested Mthethwa give power of attorney to someone to get his affairs in order and asked the court not to set "a dangerous precedent" by granting bail and allowing him to make arrangements in "the luxury of his own home".
Judge Goliath said she would need time to consider the arguments and will deliver her ruling on Friday, March 31.
Sentencing proceeding were set down to start on April 20.