Court resumed on 22 November 2016 @ 10:15.
Today the final arguments for the State and for the defence were supposed to be presented. But in a surprise move, the defence are applying to reopen their case.
For the first time during the trial, the Court is informed of Mthethwa’s apparent ‘memory loss’ over the 13th and 14th April 2013. According to Booth, subsequent evidence has indicated that this aspect – this ‘not being able to recall’ – has happened to Mthethwa on previous occasions. The defence didn’t know about this history, and so would like to reopen their case to bring in a final witness: former head of Valkenberg Professor Tuviah Zabow, who testified for the defence in the Cape cannibal case, who also acted on behalf of Shrien Dewani, and who is also assisting Booth in his defence of Guatemalan Diego Novella.
On the 9th November 2016, Zabow submitted a report after having seen Mthethwa, which has since been submitted to the State.
The idea is that Mthethwa hadn’t realised before what the extent of his memory loss incidents were. Booth says it’s because the matter has received a lot of press coverage that this psychological case is necessary, and reaffirms that this information only came to hand after the defence closed their case.
Booth says the Court should hear the evidence because it is in the interests of justice, and because it is not prejudicial to the State – the State is fully entitled to read against it.
Booth then pushes for Zabow to appear the next morning (Wednesday 23rd November).
Then it’s time for the State to respond.
This is a gross irregularity, says the State, and a classic example of the defence reopening their case because they know where the shoe is pinching.
In Zabow’s report there is no previous, similar absence of memory mentioned. The State wants it placed on record in fact, that Zabow said Mthethwa’s memory function is intact.
The State will object to the report as hearsay, and references Section 3 of Act 45 of 1998. The State asks the Court why the defence should be given the opportunity to lead inadmissible evidence.
Referring to the case between Michael Felthun and the State, where an application for reopening that case is discussed, the State points out that there must be a reason why the evidence was not submitted timeously. The State points out again that the defence apparently knew the whole time that Mthethwa didn’t remember anything, but this is the first time the Court or the State hear of it.
The State continues: How can we get to the credibility of the information if the accused themself doesn’t testify – which is his right of course.
Without the accused testifying, Zabow is essentially testifying in a vaccuum – there is no basis for the report to be based on – it’s like the corroboration of evidence that has not even been presented.
There isn’t even testimony of peculiar behaviour on the part of Mthethwa that has been given as evidence, and which this report could then examine.
It’s also very convenient that Mthethwa can’t remember a period of two days, over which the incident took place, but is adament that he wasn’t involved in that incident.
The State also pointedly remarked on Mthethwa’s stating he wasn’t in the position to testify because he can’t remember those days, but that he’ll send someone else to say that for him. Evidently he doesn’t want to be tested on that one line: “I cant remember”.
That evening Mthethwa spent about R2000 (according to his bank records) on his credit card at the Corner Lounge in Gugulethu, which made the news earlier this year in another murder case.
The entire matter needs authority to enable a view that this report won’t be simple hearsay evidence.
The defence counters that Zabow has seen Mthethwa twice, once again after the report. So, it’s implied, there is more information on Mthethwa’s memory loss that has been found in the second meeting.
The Court asks, but isn’t the backdoor being used as the State suggests – is it hearsay? – that’s what the Court wants clarification on.
Booth counters, the Court can only say it’s hearsay once they’ve heard the testimony.
The State interjects that the report is going to be full of ‘he told me’ and ‘then he said’ anecdotes.
Booth says no – this is an expert, with an expert opinion. This is not some person on the street who is recounting some passing conversation.
In conclusion, the Court says they want to hear chapter and verse on this matter, from the State and the defence.
The Court wants a solid basis for application (by the defence), and objection (by the State).
Court is therefore adjourned to Monday 28 November at 09:30.