‘She isn’t my daughter’

She may not have screamed her refusal or given an explicit ‘no” to Jacob Zuma, and her psychological state may be in dispute, but these are not sufficient reasons to dismiss the Zuma rape trial complainant’s claim that she was raped. That, in effect, was Judge Willem van der Merwe’s rationale in dismissing the application by Zuma’s lawyer, Kemp J Kemp, to have Zuma discharged without taking the witness stand.

Invoking Section 174 of the Criminal Procedure Act, Kemp argued that the state had not produced strong enough evidence to compel Zuma to defend himself.

He argued that the latest interpretation of the Act, by the Supreme Court of Appeal, meant the judge was obliged to throw out the case if, on the state’s own evidence alone, there was no prospect of a conviction. Kemp argued that, at the current stage of proceedings, making the accused take the stand could only serve to bolster the state’s case and result in the accused incriminating himself.

By dismissing the plea, Judge Van der Merwe has compelled the former deputy president to give his own version of events in an effort to persuade the Johannesburg High Court to disbelieve his accuser. That will be his task next week, not proving that he is innocent.

As he climbs into the witness box on Monday, the onus will be on him to rebut the evidence led by the state and create reasonable doubt about his accuser’s version.

First and foremost, Zuma will have to convince the court that his relationship with the alleged rape victim was not that of a father to a daughter, but that of a lover. He is also likely to argue that, before the sexual encounter took place, the woman had created the impression that she was sexually receptive.

The woman, nicknamed Khwezi by her supporters to circumvent the legal requirement that she should not be named, has told the court she could not have consented to sex with Zuma because she regarded him as her father. Through Kemp, Zuma has told the court that, although the woman might have viewed him as a father figure, he did not share that perception.

He is expected to point to the infrequency of their contact in the years between the return from exile and the night of the alleged rape as evidence that a father-daughter relationship did not exist.

His defence team has argued that he could not have been expected to ‘know of the peculiar psychological” condition of his accuser when she ‘froze” instead of clearly indicating that she did not want to have sex with him.

Zuma will have to give substance to Kemp’s description of the complainant as ‘an accomplished liar” by outlining an alternative version of the relationship and the inter-action between the two.

He is also expected to testify on why no criminal intention should be inferred from the cellphone conversations and the flurry of SMS messages he exchanged with the complainant, her mother, family friend Zweli Mkhize and others after the alleged rape.

Kemp has already argued in the Section 174 application that, given that the families knew each other, there was no reason why they should not try to settle the matter amicably.

Another contentious issue that Zuma will have to clarify is whether the police warned him of his right to remain silent. Kemp says his client was not warned and asked that the judge exclude the testimony of Gauteng detective chief Norman Taioe and Superintendent Peter Linda on those grounds.

The two investigating officers told the court that they warned him and that he volunteered a statement on the alleged rape. Zuma could be damaged by the contradiction between this statement and subsequent testimony about which room of his Johannesburg house the alleged rape took place in.

Judge Van der Merwe has said he will make his ruling on the matter at the end of the trial.

Central to the state’s case has been the testimony of trauma psychology specialist Merle Friedman, which put the complainant’s reaction to the alleged rape — and specifically her ‘freezing” and failure to report the incident to the police or a doctor immediately — into an explicable psychological context. To rebut this, Zuma may have to call his own expert witness.

Delphine Serumaga, director of People Opposing Woman Abuse, told the Mail & Guardian after the Section 174 application that she was happy the application for a discharge had failed ‘because [otherwise] the case would have felt incomplete”.

Zuma’s evidence will not only be an effort to clear his name, but to give a watching nation a sense that the case is complete.