After another delay of several months, the case against Zwelethu Mthethwa started again on Monday (10 October 2016) with the defence calling their first witness, Jan Pretorius. Pretorius testified that he could not tie the Porsche in the CCTV footage to that invoiced to Mthethwa, or recognise any unique features in the footage that would positively identify the car in question. This is in response to the state’s witness Ruaan Steynfaardt , who earlier in the year identified the car he sold to Mthethwa in the same footage. Defence lawyer William Booth called for Steynfaardt to be recalled back in March.
Following Pretorius’ appearance, the case was then postponed to Wednesday, 12 October where the defence’s second witness would testify.
Inside the court, Wednesday 12th October 2016
Wednesday 14:00: From the bench directly in front of me, Booth and co. are discussing Scotch, previous wives, and golf handicaps.
The court registrar who will swear in the witness arrives.
Jokes are made about the cricket.
The court registrar departs again.
Quieter conversation happens in front of me about a family event where people partied until 5 in the morning.
The court registrar returns.
A person (unknown to me) on the defence jokes to the registrar about how the court should postpone this matter in order to arrest the student protestors. The registrar replies, and says how sad the students’ actions are. A cosy conversation, again on that bench in front, of me revolves around Booth reminiscing how “back in the day we didn’t burn down the universities, we fought the police”.
Western Cape High Court Judge Patricia Goliath arrives, and the trial begins.
Tim Atkinson is sworn in. He is the second witness for the defence (the first having testified on Monday). Atkinson has testified previously in the trial-within-a-trial where the defence attempted to have the CCTV footage ruled inadmissible. He is an audio/visual recording expert, with experience in the field since 1965.
Booth clarifies, with Atkinson and the court, the various individual documents and stills that Atkinson has compiled for the court, in an attempt to “speed things up”. The documents and stills relate to Camera 2 (referred to as Tollgate), and Camera 5 (referred to as Stockyard), both of which are footage CCTV captured of the road scene where Kumalo died on the 14th April 2013.
The defence’s presentation of footage from Camera 5 begins at a point very soon before the violence, where a person is seen walking down Ravenscraig Road towards Victoria Road at 02:43:38. Atkinson declares that this visual should have alerted the state to the difficulty in determining the amount of people that could have been off-screen and/or where the person in question appeared from.
Ravenscraig Road, Woodstock, 7925
Note here that the pedestrian’s point of entry in the Camera 5 footage is the same as that of the victim, the assailant, the person who will later walk to the car, as well as the departure point for the person who leaves the car.
Three minutes later, a Porsche arrives and parks in the road. At 02:47:06 a person walks from the car to a point off-screen – in the direction that the 02:43:38 person entered from. Atkinson hypothesises that this newly arrived person is aiming for something which is further up the road.
Shortly after, a person enters screen again, at a pace, and from that same point of departure. The person brakes, and then Kumalo enters the scene from the same area, in the motion of falling on the pavement by the edge of the camera’s reach. This is followed by stomping, and kicking. The car is in the same frame throughout, parked.
A problem the defence is exploiting is that violence took place on the edge of the camera’s field. At several points the assailant moves out of the frame. It’s uncertain, for example, at a midpoint in the violence where only the limbs of the assailant are seen, that the limbs do indeed belong to the person who entered the frame at the pace stated above.
This seems to be the main case of the defence. The continuous movement of the person who left the car is broken. You can’t be sure, beyond reasonable doubt, that the person who leaves the car is the same as the person who re-enters the car, and the person who inflicts the violence. Or that the assailant was acting alone. The camera captures a field of vision, it cannot be proved that there were 10 or even 100 other people just outside the frame, further up the street.
The footage from Camera 5 is not of a quality to really make out clothing details, or any particular characteristics of the individuals.
A gait expert previously testified in May 2016 and stated that it could not be conclusively determined that the perpetrator and the accused were one and the same.
Atkinson describes the walk of the person back to the car as a ‘slow, dejected’ walk. He frequently uses tasteless phrases to describe the assault. Camera 2 has not yet been addressed.
Court adjourns and the trial is then set to continue at 09:00 on Thursday 13th October.
Zwelethu Mthethwa, Tim Atkinson, and a member of he defence team outside the Western Cape High Court on 12 October 2016
Thursday 13 October
The state again is accused of not giving any significance to the person who walks down Ravenscraig towards Victoria Road at the 02:43:00 or about, just three minutes before the car arrives. That person, it would seem from Camera 5’s angle, has a lighter garment on the top of their body and a dark item on the lower half. From Camera 2, across the road and in sight of Camera 5, a blue and white striped top on the person in question can clearly be seen. This demonstrates the poor quality of Camera 5.
Moving on to the arrival of the car and the assault, Atkinson states that he cannot determine any specific similarity between the assailant (referred to as the ‘kicker’) and the person who leaves the car at 02:47:06 (referred to as the ‘walker’). The walker leaves the car and walks out of the frame in a single motion without anyone else present on the camera’s field of vision. Presumably this is the same person who later enters the frame at 02:52:24, walks to the car, and leaves the scene. The walker, when returning to the car, passes right next to the victim who is lying on the same pavement, and does not acknowledge her in any visible way.
Between the walkers’ appearances, we have the assault. The kicker (as discussed earlier) enters the scene at at a running pace of 6m/s as calculated by Atkinson. At 4.09m from the frames edge, the kicker comes to a halt. Because the victim enters the screen – from the same point of entry, and falling onto the pavement – 0.4 seconds after the kicker, Atkinson’s hypothesis is that because the kicker is in the frame so fully before the victim, the kicker is unlikely to be the reason for the victim entering the scene.
The focus of the defence’s witness is very much on the walker and the kicker. Judge Patricia Goliath states here that the most, and more important, fact of the deceased’s position and entrance to the frame has been given much less attention by Atkinson. Pointing out that “the victim is nowhere to be seen in terms of the hypothesis”, this is recorded as a concern of the court – this lack of representation of the victim. The judge also makes sure that the second person is acknowledged as the victim, the deceased, and that we should all be aware of who that individual is.
Following on Atkinson’s hypothesis of the unlikelihood of the kicker having caused the collapse of the victim on her entering the Camera 5 scene, a video is shown to the court:
In February, Senior Forensic Pathologist Dr Linda Liebenberg took to the stand and testified that Kumalo died as a result of blunt-force trauma.
She told the court that she had been concerned about the lack of blood loss, but that after viewing CCTV footage of the incident, she had more information.
She conceded that the issue of “commotio cordis” would not have arisen had she not viewed the footage.
“Commotio cordis” is a disruption of heart rhythm caused by a blow to the area directly over the heart, and Liebenberg believes this may have happened in the case of Kumalo.
In the first two seconds of the CCTV footage, Liebenberg said one could see Kumalo stumble on screen, and then try and get up.
When Booth asked her if she could exclude that Kumalo was dead already when the the kicking and stomping happened, Liebenberg said she couldn’t rule it out, but it was a “rare possibility”. – read more
A second video is then shown – a clip of the actual CCTV footage evidence – and the question is again posed as to whether the victim was already dead before the first blow captured by Camera 5 was inflicted. The downwards movement of the head of the victim as the kicker/assailant moves towards the victim is part of Atkinson’s hypothesis, he states that the movement is similar to that in the karate competition death.
State prosecutor Christhénus van der Vijver then requests time to prepare for cross examination of the witness.
Bail is extended, and the trial is set to continue on Monday 17 October at 09:30.
