It wasn't really about 'impartial, objective' judgment, but rather competing narratives.
“It must have been clear from the beginning,” announced Judge Willem van der Merwe during the trial of Jacob Zuma for rape, “that I would not have allowed myself to be influenced or distracted by anything or anybody. A judicial approach cannot be anything else than impartial, objective, fair and totally dedicated to the task lying ahead.”
He saw the live broadcast of his judgment as “an educational tool” for the public. He summarised witnesses’ evidence in a manner that showed his mind was unswayed by favour or sentiment; he applied formal legal procedures, such as the rules of evidence and the use of case law. The facts of the case were duly selected and properly admitted on the grounds of their logical pertinency. On this basis, he acquitted Zuma.
This is one way to understand the final decision in the State vs Zuma 2006. Another is to see the judge, like judicial officers generally, as having engaged in a far more imaginative process – one he describes, quoting the State vs Radebe 1991, as “arrang[ing] the facts, properly evaluated, particularly with regard to the burden of proof, in a mosaic in order to determine whether the alleged proof indeed goes beyond reasonable doubt …”
This view likens judicial decision-making to a process of sorting and ordering assorted bits and pieces of evidence into a recognisable and coherent form of “the truth”. Implicit in this metaphor of the mosaic is the idea of an underlying template guiding and patterning the final truth design. And, because language and words (rather than small coloured pieces of glass) are the currency of the law, this template or form is the story.
Thus the Zuma rape trial was a storytelling contest, with the final judgment acting as the authoritative or master narrative.
I am not claiming that legal decisions are works of fiction, but that these master narratives are stories about reality rather than reality itself. Narratives are social practices that explain how the world works. They simultaneously reflect and constitute their own meaning as well as their protagonists’ various identities. And, like any social practice, narratives are likely to reflect, sustain and reproduce dominant cultural meanings and power relations.
At least three elements are required for a narrative. First, a selective appropriation of past events and characters needs to be apparent; second, events should show temporal ordering into a beginning, middle and end; and, finally, the events and/or characters must be related to one another and to some overarching structure. This relationship between the parts, where some cause and others follow on from events or characters, constitutes the plot that drives the storyline. Temporal and structural ordering should produce both narrative closure and narrative causality.
In 2006, the basic storyline to which all rapes had to conform in terms of South African common law was “intentional, unlawful sexual intercourse with a woman without her consent”. Legally, this is only the starting point: there are further legal requirements for a rape narrative to be credible. Plausibility depends on how well the particular events of a rape conform to expectations and reflect on the character of the victim.
Legal rape narratives thus do not strictly confine themselves to what occurred between the two protagonists but range further across time and space to include stories about sexual relations with other men, under different circumstances and at different times. Usually the prosecution will seek to keep such stories out, whereas the defence will seek their inclusion as necessary or relevant to the accused’s narrative.
In the account of the victim, given the pseudonym Khwezi, she was raped by someone she considered a father figure. This father-daughter relationship is the essential causal link in Khwezi’s story. Crucially, it explains why, once she realised Zuma intended to have sex with her, she was taken completely off guard and froze instead of resisting him.
Khwezi’s mother testified to Zuma’s later offer of reparations. But, observed the judge, “the evidence of the complainant’s mother does not really take the matter much further”. Under cross-examination, Khwezi’s mother revealed that Khwezi had spent time in a psychiatric institution, was “confused and troubled”, and continued to see a psychologist.
Psychologist Dr Merle Friedman returned to events during and immediately after the rape. Her evidence was intended to authoritatively endorse Khwezi’s account of her freezing during the rape and subsequent delay in reporting it.
Against this narrative, the Zuma defence had to construct a counter-narrative that challenged it. The unravelling of Khwezi’s version began under cross-examination, with a series of questions about the putative father-daughter relationship. The next part focused on the events of November 2 2005, up to and including the rape, as well as Khwezi’s actions afterwards. The next portion of the cross-examination turned to Khwezi’s previous sexual history. This move into the past enabled the defence to create mystery and suspense: What lies hidden in Khwezi’s past? What needs to be uncovered to shed light on the present?
The suggestion that she had something to hide was reinforced by the dramatic and unexpected production in court of 16 pages of a book Khwezi was writing. Her shock at being confronted by this further implied she was an unreliable narrator, a teller of tales and a writer of fictions.
In answer to the daughter-mother pairing that began the state’s case, the defence began its case with the father-daughter pair of Jacob Zuma and Duduzile Zuma. After Jacob Zuma had given his version of events on the night of November 2, framed as “delicious” consensual sex, into which he had been enticed and to which he could not say no, his daughter Duduzile testified about her perceptions of Khwezi’s behaviour that night.
Not having been in the room at the time of the sexual encounter, Duduzile could not corroborate either version, but her appearance was absolutely crucial.
First, as Zuma’s biological daughter, she was an essential counterpoint to the pretender, Khwezi. Second, she lent Zuma feminine respectability, a role that traditionally falls to the wife – but here “the wife” was conspicuous by her absence. Bringing a wife into Zuma’s story would have seriously complicated the defence’s narrative. Duduzile thus played the traditional womanly role of “standing by her man”, protecting her father and employing her “women’s intuition”. Where her father was not able to see feminine manipulation, she was immediately able to scent a conniving woman.
In Duduzile’s evidence, as summarised by the judge, she “formed the opinion that the complainant was trying to stay the night at the Zuma residence” and “she was convinced that the complainant was trying to entice her father”. She “said her feeling was as a result of women’s intuition”.
The next set of witnesses resurrected the past, mounting a series of attacks on Khwezi’s credibility. Seven witnesses all testified to previous false rape allegations by Khwezi. Three other witnesses later alleged assertiveness, even aggression, in Khwezi’s sexual behaviour towards them.
Justifying his decision to allow evidence of Khwezi’s previous sexual history, the judge said it was “not to show that she misbehaved with other men. In fact, it was aimed at showing misconduct in the sense of falsely accusing men in the past.”
The finale to the defence’s case was Dr Louise Olivier. Like Duduzile Zuma, she was a counterpoint, challenging Friedman’s methods and conclusions as “not in accordance with the ethical code of conduct of the professional body of psychologists”. In storytelling terms, Olivier provided narrative closure by giving plausible “scientific” explanations as to why Khwezi would lie about the sexual encounter with Zuma.
Overall, in terms of pace, sequencing and structure, the defence constructed a far stronger – and thus more plausible – narrative than the prosecution’s. The temporal sequencing of the prosecution’s case was disjointed, leaping between different parts of their story. By contrast, the defence clustered together all witnesses testifying about the same or similar events. The prosecution weakened its narrative by including witnesses who took its story nowhere, but all the defence witnesses built incrementally on one another to tie up the loose threads and achieve narrative closure.
The prosecution’s narrative literally lost the plot midway before petering out altogether. Hence the defence’s story seemed more ordered and coherent. Finally, by moving between past and present, the defence introduced suspense, intrigue, drama and mystery into its narrative, which made its story more gripping and compelling.
The liberation struggle, of which both Khwezi and Zuma were part, not only brought apartheid to an end but also ushered in an era of new-found and extensive freedoms for women. Many of the gains South African women now enjoy are unprecedented in large parts of the world. This story about women’s democratic victories post-1994 is dominant both in South Africa and internationally. The Zuma trial shows how convenient a fiction this narrative can sometimes be.
Whereas some limited gains have been made in relation to aspects of the law on rape, the decision in the State vs Zuma 2006 reclaims legal ground from feminist interventions by upholding and valorising conservative and exclusionary ideologies around rape, sexuality and gender relations.
Indeed, in the contrasting figures of Duduzile and Khwezi can be read the fate of women since 1994. Good daughters who uphold and protect their father’s power will reap the benefits of the revolution, but the lying pretenders and their supporters are to be as excluded from the new order as they were from the old.
Lisa Vetten is a research associate at the Wits Institute for Social and Economic Research (Wiser). This is a shortened, edited version of a paper delivered at Wiser’s Art of Human Rights workshop. The full-length paper is currently under review for publication in a legal journal