Former justice Zak Yacoob says reports on his comments missed his point: that the sexual history of witnesses in rape trials are irrelevant.
Former Constitutional Court justice Zak Yacoob on Friday sought to clarify statements he made on Thursday about the 2006 rape trial of President Jacob Zuma.
Yacoob reportedly said he would have found Zuma guilty of rape, but told the Mail & Guardian on Friday that this was not was he said. He said his comments were about the way that Zuma’s accuser, known as “Khwezi”, was treated during the trial, and not about the strength of the evidence against Zuma.
This was intended to make a wider point about the way that the sexual histories of women were used as mitigating factors in rape cases. Yacoob said the sexual histories of Khwezi and other rape accusers were “irrelevant” in his view, and so he would not have factored them into his judgment if he were hearing the case.
Yacoob was quoted as saying he would have “set aside the judgment”, but said that he was misquoted.
“I said that I may have found differently,” Yacoob told the M&G, adding that it was very difficult to say whether one would find differently.
Subjectivity and sexual history
“It wasn’t a comment about the strength of the evidence against Zuma; it was a comment about the treatment of the witness and whether I would have rejected her version based on her sexual history, in the way that judge Van der Merwe did.
“There’s an element of the subjective in a judge’s decision-making process. What I said was, I may have found differently because I would not have criticised the witness for not reporting the rape sooner, and for her sexual history.
“I was making a point about the treatment of witnesses in rape trials. And I was also making the broader point about how cases are decided and how people differ.”
He said that in court cases, there were two narratives; Khwezi’s was rejected because she was painted as someone who had previously demanded sex and who did not report the rape quickly enough,Yacoob said. He said he would have disregarded this if he was hearing the case.
“On the basis of how the witness was treated, I may have found differently. But I would not have criticised the witness for not having reported the incident early. I would not have taken into account that she had demanded sex from people before, because as far as I was concerned because that is irrelevant; even a prostitute has the right to say ‘no’.”
Differences of opinion
Yacoob added that the Zuma trial was the topic of discussion by Lisa Vetten, the speaker who spoke immediately before him at Thursday’s event.
Vetten is a researcher at the Wits Institute for Social and Economic Research (Wiser), which hosted a workshop on “The Arts of Human Rights” on Thursday. Yacoob was an invited speaker.
Vetten’s presentation was about the narrative that emerged during the State versus Zuma – the president’s rape trial.
“Because I was speaking immediately after her, I decided to use that case as an example to make a broader point. It was a very nuanced thing,” he said.
Asked if he was concerned that his comments could be misconstrued, and abused by those who saw the judiciary as “counter-revolutionaries”, Yacoob said this would be unfair.
“Judgments are not black and white. They are very nuanced and very complicated. And it is quite impossible to say that a judge was right or wrong, although it is possible to say that judges may have differences of opinion,” he said.
Inaccuracy of the reporting
Yacoob said he was more concerned about the “inaccuracy of the reporting” than he was about the possibility that his comments might affect the way he was viewed.
Asked if he thought his comments might affect the way he is viewed, especially now that he has been appointed to head an inquiry into political factionalism at the National Prosecuting Authority, he said: “I am concerned because of the inaccuracy of the reporting. And I’m concerned really because the context wasn’t fully and properly taken into account.”
“There is a level at which one has to discuss controversial things. For the purposes of ensuring that people know what justice is about, one can’t shy away from these things,” he said. “Although sometimes the way one is reported on makes one have second thoughts.”