06/12/2016 06:58 SAST | Updated 06/12/2016 07:17 SAST

Doctor Testifies In Nokuphila Kumalo's Murder Trial About Zwelethu Mthethwa's Inability To Remember

"Alcohol was consumed of considerable amount, but he is unable to indicate if he was able to drive or was driven."

Nardus Engelbrecht/Gallo Images
CAPE TOWN, SOUTH AFRICA - JUNE 1: Internationally-renowned artist Zwelethu Mthethwa, who is accused of beating Nokuphila Kumalo, a 23-year-old sex worker to death in 2013, seen outside the Western Cape High Court, on June 1, 2015 in Cape Town, South Africa. SWEAT, the Sex Workers Education and Advocacy Taskforce protested outside court.

Artist Zwelethu Mthethwa's failure to recall events the night sex worker Nokuphila Kumalo was murdered is not as a result of memory loss or pathology, the Western Cape High Court heard on Monday.

"Alcohol was consumed of considerable amount, but he is unable to indicate if he was able to drive or was driven. The alcohol could be contributory to this blank period," testified defence witness and psychiatrist Tuviah Zabow.

He was referring to the period between 13 and 14 April 2013, when Kumalo died as a result of blunt force trauma in Woodstock.

The court last week granted the defence leave to reopen its case after credit card statements emerged showing that Mthethwa spent R2 600 at the Corner Lounge in Gugulethu.

Advocate Christhenus van der Vijver, for the State, had objected at the time, saying Zabow's testimony would be based on hearsay, since the artist had not testified.

Zabow assessed and interviewed the 56-year-old last month before compiling his report.

No 'explanations' from artist

He told the court Mthethwa's memory was intact. He showed good insight, awareness and judgmental capacity.

Of that evening, he said: "He didn't offer me explanations. Nothing. I could not jog his memory or get him to come up with recall."

"He maintained the same lack of recall for three years. He had some time to recall or provide exculpation or fabricate something. It wasn't like he was arrested the next morning and said, 'I cannot remember'."

The artist apparently told him of other incidents in which he could not remember arriving home after a night of drinking.

Zabow said he did not include these in his report because he was aware it may be challenged as hearsay.

He believed the alleged offences were "out of character" for Mthethwa. He also believed putting the artist on the stand would not take "the situation further".

Under cross-examination, he confirmed to Van der Vijver that he only had interviewed the artist, and no one else.

"Your only source was a person who was in hot water and might have come to you to see if you could assist him," noted the prosecutor.

'He drinks good whisky and good wine'

He asked the psychiatrist to expand on Mthethwa's drinking habits.

Zabow replied that his social drinking pattern was considerable, repeated, and that he consumed alcohol in a particular environment.

"He likes good drink. He holds his drink. He doesn't get into a fight, but probably reaches a level of intoxication where he should not be driving. He drinks good whisky and good wine. And he does not mix his drink. He goes out and drinks with friends regularly."

Van der Vijver said one could not assume that the R2 600 was all spent on alcohol or, if it was, that Mthethwa drank all the alcohol.

He said it was possible for an "ordinary Joe Soap" to snap and do something out of character.

"You have given us a lot of info that the accused could have given the court. Exactly what you were told could have been testified in court and been subject to cross-examination," Van der Vijver said.

Zabow agreed that the artist was fit to stand trial.

The matter was postponed for another defence witness to testify next week on Monday.