Former deputy president Jacob Zuma could take the stand in his rape trial on Monday after the Johannesburg High Court turned down an application to have the case discharged on Wednesday.
Asked if his client would take the stand when the trial resumed, Zuma’s lawyer Kemp J Kemp would not give a direct answer. He would also not say which defence witnesses he would call.
”I will see,” he said when asked if Minister of Intelligence Ronnie Kasrils would testify.
Kemp made the discharge application in terms of Section 174 of the Criminal Procedure Act, arguing that the state had not proven beyond a reasonable doubt that Zuma raped a 31-year-old HIV-positive family friend at his Johannesburg home.
Honing in on aspects of her testimony that he considered inconsistent, Kemp called the woman an accomplished liar and told the court there was no medical evidence of rape.
While Judge Willem van der Merwe adjourned to decide on the application, bets were made in courtroom 4E on whether Zuma would walk free. Zuma chatted and joked with his supporters in the front row of the public gallery.
Van der Merwe returned in less than an hour to arrange his legal tomes and pens carefully and take his spectacles out of their case.
Police Superintendent Peter Linda and Commissioner Norman Taioe — whose evidence Kemp had asked be found inadmissible — were on the edge of their seats as Van der Merwe went on to pour himself a glass of water.
Delivering his ruling, Van der Merwe found he could not agree that evidence led by the state was of such poor quality that it could not be accepted.
Also, he was of the opinion that a finding of mens rea (guilty mind) to rape could be made if no more evidence was led. ”The accused is not entitled to his discharge,” he said.
After quoting a number of legal precedents Kemp had presented, Van der Merwe asked: ”With the foregoing in mind, the question in the present matter then remains: Is there evidence on which the accused in this matter might reasonably be convicted?
”Put differently, is there a possibility of a conviction even if he does not enter the witness box and then incriminate himself?
”Put even more simply, will the accused be convicted at the end of the case if he closes his case without testifying or without leading evidence?”
In deciding the question, the credibility of witnesses played a limited role.
”Only if evidence of the witnesses was of such poor quality that there is no possibility that it can be accepted, can it be ignored.”
Van der Merwe noted that Kemp, in an able, well-prepared and persuasive argument, which concentrated on mens rea, asked him to find that the evidence was of such poor quality.
”In strong argument, he submitted that a court cannot conclude that the state had proved mens rea beyond a reasonable doubt.
”In the first, I cannot agree that the evidence led by the state is of such poor quality that it cannot be accepted.
”I can therefore not ignore the evidence so far led.”
Van der Merwe continued: ”I am of the opinion that there is evidence before me that if nothing more is said, a finding of mens rea to rape can be made.”
He will make a ruling on the police officers’ testimony at the end of the trial.
Supporters
Outside the court, Zuma’s supporters were quiet while the small lobby against rape and abuse of women, danced and hugged.
”It would be wrong for us to say this case is over, but I think there is a victory from the perspective that it is important for rape survivors to hear what the accused has to say,” said Carrie Shelver, of People Opposing Women Abuse.
”We must note that this judge is thinking in a progressive way. He is well read … and is really showing himself to be on the right track,” she said as she briefed the group.
Meanwhile, African National Congress Youth League spokesperson Zizi Kodwa stressed to Zuma’s supporters that there had been no judgement in the case. ”The case continues and that is the bottom line.”
Kodwa did not tell the few hundred supporters that the application for discharge was denied.
He told them not to believe what they would read in newspapers and hear on the news, as this would lead them to believe that Zuma was guilty. ”Msholozi [Zuma] is not guilty. No court of law has found him guilty.”
Kodwa appealed to the crowd members to be at the court on Monday at 9.30am, saying their protests had not been fruitless.
Young Communist League secretary general Buti Manamela said: ”This is not a battle lost, it’s a battle continued.”
He said Zuma had asked them not to update the crowd on the details of the trial, as he would do so at the end of the hearing.
In a one-sentence statement issued after Wednesday’s proceedings, state prosecutor Charin de Beer said: ”We have always said that we have a provable case and we are indeed prepared for the next phase of the trial.” — Sapa