Analysis of the third kind
30 June 2016 17:55 (South Africa)
Life, etc

Murder trial of Zwelethu Mthethwa: Justice delayed

  • Rebecca Davis
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    Rebecca Davis

    Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.  

  • Life, etc
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Zwelethu Mthethwa will not face his day in court just yet. The internationally-renowned artist, accused of killing sex worker Nokuphila Kumalo last April, on Monday saw his trial pushed back for over six months because no judge was available. While these delays are regrettably common for cases outside the limelight of the Pistorius and Dewani arenas, for the sex workers gathered outside court in Cape Town, it was taken as further proof that the law does not prioritise these crimes as it should. By REBECCA DAVIS.

On a blustery, sunny day in Cape Town on Monday, the murder trial of Zwelethu Mthethwa was set to begin.

“No Woman, No Cry,” sang orange-T-shirted members of SWEAT, the Sex Workers Education and Advocacy Taskforce.

“Life in jail for sex worker’s murder,” read one sign they brandished.

“Sex workers are not your art,” proclaimed another.

On the airless third floor of the Western Cape High Court, the artist sat outside the designated courtroom, waiting for proceedings to start. His hands clasped together, he chatted intermittently with a female supporter.

Mthethwa stands accused of having beaten to death sex worker Nokuphila Kumalo, 23, in the Cape Town suburb of Woodstock last year. The prosecution’s indictment alleges that he “attacked her by repeatedly kicking her and stomping her body with booted feet”. Nokuphila’s mother Eva told the Sunday Times that she understood her daughter lost an eye in the brutal attack which killed her.

The evidence which the state looks set to use to connect him to the crime reportedly includes CCTV footage and a tracking device on his car which allegedly records a journey taken from his home to the scene at the relevant hour.

The car in question is a Porsche. Mthethwa has been a major success on the local art scene, with his work rapturously received and exhibited at galleries internationally. To fight his murder charge, he has procured the services of one of the country’s top criminal lawyers, William Booth.

After around half an hour of waiting in the allocated courtroom, those gathered were informed that a postponement to the trial would be dealt with by an acting judge in a different courtroom downstairs.

There, another murder hearing was underway. The lawyer for a young man in a white sweatshirt was proclaiming her client’s innocence. The accused knew nothing about the stabbing of the deceased in Langa, she protested.

With the arrival of Mthethwa, the young man’s case was stood down. He sat hurriedly in the dock, while Mthethwa was shuffled in to sit beside him. The two did not exchange words.

It took less than five minutes for Mthethwa’s case to be postponed to 1 June 2015, because no judge was currently available to hear it. The artist rose in the dock to be addressed, meekly replying “Yes, m’lady”, when told that he should present himself at court again at 9am on that date, with his bail extended until that time.

When the SWEAT activists outside court were told of the postponement until June, they reacted with outrage. “Never!” they cried. “What can happen in that time?” one asked.

Mthethwa escaped being on the receiving end of their indignation by being smuggled into a car with darkened windows round the side of the court building. It drove off at speed with Mthethwa lying flat on the back seat, to the accompaniment of sex workers yelling “Money talks!”

Mthethwa’s lawyer William Booth said it was disappointing that the trial could not begin, after having been set down to start on Monday, but he was sanguine: “Cases do get postponed,” he said.

He declined to comment to the Daily Maverick on the strength of the defence’s case, but he said that they had engaged various “experts” to counter the forensic evidence due to be presented by the prosecution in the form of CCTV footage and the car tracking device.

A day previously, the Sunday Times had reported that one of these experts would present evidence relating to Mthethwa’s gait, in order to suggest that it could not be the artist pictured in the relevant CCTV footage.

The newspaper also reported that one of Mthethwa’s works was set to go on auction at Strauss & Co on Monday, the same day that his murder trial was due to begin. The painting, ‘Good Times’, pictures patrons carousing at a tavern. At time of writing, it was still advertised on Strauss & Co’s website as lot 264 of an auction to be held late on Monday afternoon.

Galleries and agents associated with Mthethwa have come under fire for their seeming reluctance to distance themselves from the artist while the murder charge hangs over him.

When asked by the Daily Maverick if he felt the timing of the sale of Mthethwa’s work was appropriate, Booth replied that he could not comment on that specific matter.

“[Mthethwa] has been quite emotionally affected [by the case], and obviously his work has been affected too,” Booth said.

Attorney and SWEAT advocacy manager Cherith Sanger called the trial’s postponement “unacceptable”, while acknowledging that it was reflective of “systemic failures”.

Sanger said that they felt the court should be prioritising the matter because of the brutality with which Kumalo was killed, and due to what SWEAT says is increasing evidence of violence against sex workers.

Later this month, the case against Kenilworth swimming coach Tim Osrin will be heard in the Wynberg Magistrate’s Court. It was reported in October that Osrin had beaten a black domestic worker he saw walking through his Cape Town suburb under the mistaken impression that Cynthia Joni, 44, was a sex worker.

On his first court appearance, Osrin told a Weekend Argus reporter: “I thought she was a prostitute…For four years these prostitutes have been giving us the finger”. He “just snapped”, he added.

“The fact that Osrin believed that was a valid defence – that he thought she was a sex worker – is what is really disturbing,” Sanger told the Daily Maverick.

Since the initial incident involving Osrin, a sex worker has come forward to claim that she was beaten by Osrin some months previously.

The woman, who has opted to remain anonymous, laid a charge of assault against Osrin for what she claims was a beating which resulted in Osrin knocking a tooth out of her mouth.

“We are happy that these cases are coming to light,” says Sanger, who added that SWEAT would be monitoring the Osrin matter closely.

Beyond SWEAT activists, there appeared to be little public interest in what should have been the first day of Zwelethu Mthethwa’s murder trial.

While the media jostled for position to cover the sixth week of the Dewani trial, taking place just a few rooms down the hall in the Western Cape High Court, journalists in attendance at the Mthethwa hearing were able to squeeze on to just one small bench in the tiny room where the matter was heard.

As for the ANC Women’s League, who were constantly in attendance at the trial of Oscar Pistorius, and who have also made appearances at the trial of Shrien Dewani – they were nowhere to be seen. Not a flash of a green beret was evident, or the hint of a placard calling for justice for Nokuphila Kumalo. DM

Photo: Sex workers demonstrate outside the Western Cape High Court in Cape Town during the court appearance of internationally celebrated artist Zwelethu Mthethwa on Monday, 10 November 2014. Mthethwa is charged with the murder of 23-year-old sex worker Nokuphila Kumalo. Picture: Nardus Engelbrecht/SAPA

Read more:

  • Analysis: If artists murder sex workers, do different rules apply? On Daily Maverick

  • Rebecca Davis
    bec photo
    Rebecca Davis

    Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.  

  • Life, etc

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