Jacob Zuma’s lawyers will do well to satisfy the judge that they were justified in not calling Zuma’s attorney, Michael Hulley, to the witness stand, when they deliver their closing arguments in the Zuma rape trial next week.
In its closing submissions the prosecution asked Judge Willem van der Merwe to infer that Zuma’s defence case would have been damaged had Hulley taken the stand.
The attorney was a central witness on the key disputed issue of whether the policemen investigating the alleged rape read Zuma his rights when they interviewed him at his Johannesburg and Nkandla, KwaZulu-Natal, homes.
Zuma claims they did not. Prosecutor Charin de Beer insists that they did, and that Hulley was present when this happened.
Zuma’s defence is keen to disqualify evidence by Commissioner Norman Taioe, the head of the detective branch in Gauteng, and Superintendent Peter Linda that Zuma had pointed to the guest room in his house as the alleged crime scene. He later testified that the sexual encounter took place in his bedroom.
As an instructing attorney who is not actively involved in the hearing, Hulley is not bound by ethical rules barring lawyers from taking the witness stand if called to do so.
The exact place where sex — consensual or otherwise — took place has become a central issue in the case, as it has bearing on the issue of consensuality.
The parties have presented mutually destructive versions of the crucial event to the Johannesburg High Court, with the only area of convergence being that there was a sexual encounter at Zuma’s house in Forest Town, Johannesburg, on November 2 last year.
The defence is expected to argue in its closing argument that the fact that the rape complainant followed Zuma to his bedroom bolstered his belief that the two were of the same mind with regard to sex.
Zuma’s case could stand or fall on whether the judge accepts his version of where the sex took place, because the rest of his defence boils down to claims that she had made sexual innuendos. Following him to his bedroom would substantiate his claimed impression of her sexual availability.
Hulley, as an officer of the court, has a greater ethical duty than ordinary witnesses not to mislead the court. If he denies his client was read his rights when the correct procedure was followed, he risks being struck off the roll.
Zuma’s lawyers are bound to ask Judge van der Merwe to dismiss as unsatisfactory the state’s explanation that the complainant’s failure to remember some of the witnesses she allegedly accused of previous rapes or attempted rapes meant that they were lying about these alleged assaults.
According to the prosecution, the witnesses were probably lying about her allegedly false rape claims. They had not explained why she should lie about not remembering the incidents in question.
Zuma, through his lawyers, is likely to argue that his apology to the rape accuser’s mother and the flurry of cellphone text messages in the aftermath of the alleged rape did not imply that he considered himself guilty.