The law can work for women

On March 25, three organisations representing the rights of women, particularly those affected by gender-based violence, applied to the high court to intervene urgently in the criminal trial of the State v Jacob Zuma. The three organisations—the Centre for the Study of Violence and Reconciliation, the Centre for Applied Legal Studies and Tshwaranang Legal Advocacy Centre—applied to be admitted as amici curiae, or friends of the court.

An amicus may be asked by the court to assist a person who has no legal representation, usually because he or she cannot afford it, on complex legal issues.
Amici also provide assistance to the court on important issues that the court needs to decide during legal proceedings. Finally, amici intervene in cases when they have an interest in the case that is not addressed by any of the other parties.

It was on the basis of the second type of amicus application that the three organisations sought to intervene in the Zuma trial. This particular type of amicus has been used effectively by many civil society organisations to educate courts about important issues such as HIV/Aids, reproductive rights and freedom of expression.

The Zuma case has raised many difficult issues, and this application was no exception. In preparing for it, the amici were confronted by the competing rights of the accused to a fair trial and to know in advance what case he must prepare for, and the wider public interest in advancing and protecting the rights of women.

Weighing up these considerations, the amici decided that it must be better to enter the fray than remain on the sidelines. They had little doubt that important legal arguments needed to be advanced to place the evidence in the proper context, namely, the reality of women’s lives.

The court rejected the application on two main grounds. Firstly, expert evidence would have resulted in the proceedings being delayed, causing distress to the complainant. The second reason was that the amici would essentially not bring anything of value to the case as the judge was of the view that much of the evidence was already before the court. Although the amici did not agree with the judge in this respect, it is significant to note that he did not dispute the importance of the evidence that the amici wanted to lead.

Although the application was ultimately unsuccessful, it did achieve several important things. Despite vehement argument from the prosecution that the application amounted to a gross interference with the prosecutorial process, the judge explicitly acknowledged the applicants’ right to bring it. The issues the amici wanted to put before the court are now also firmly in the public domain, and will hopefully continue to influence and contribute to the public debate about the case and the broader issues of gender-based violence. In particular, it is hoped that the application, despite its failure, will send a clear message of support and encouragement to other rape survivors.—Gender Links

Liesl Gerntholtz is the executive director of Tshwaranang Legal Advocacy Centre

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