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02 May 2006 11:16
The state has to prove Jacob Zuma is HIV-positive and that was why he could allegedly rape an HIV-positive woman, his defence told the Johannesburg High Court on Tuesday.
Zuma’s lawyer Kemp J Kemp said the state’s argument that the former deputy president was HIV-positive was “totally flawed”.
He said Zuma had testified he had been tested for HIV on a number of occasions and the last time was in March 2006.
The 31-year-old complainant alleges Zuma raped her at his Johannesburg home on November 2 last year. Zuma says they had consensual sex.
Both testified that a condom was not used.
Kemp said state prosecutor Charin de Beer had no factual basis to argue that Zuma was HIV-positive and had therefore allegedly raped the woman without using a condom.
If Zuma was HIV-positive, then the state’s argument that the complainant could never have had sex without a condom due to the risk of re-infection would have to apply to Zuma as well.
Maybe Zuma should not have had unprotected sex, but that did not mean that he raped the woman, Kemp said.
Kemp told Judge Willem van der Merwe the state would have to prove that Zuma was HIV-positive and until this was proven, it had to be assumed he was negative.
Zuma’s lawyers would not allow him to tell the court that he was HIV-negative without having the proof.
The prosecution could have asked to have seen the document. The state could even have asked for a blood sample from Zuma.
The complainant had not given the slightest suggestion that Zuma was HIV-positive during her testimony.
Kemp said that Zuma’s negative status was in his favour because if there had been any struggle as there normally would be during a rape, this would have heightened the chances of Zuma contracting HIV.
On Zuma’s testimony that he had a shower immediately after having intercourse with the woman to lessen his chances of contracting HIV, Kemp said this was not unusual.
He told Van der Merwe if there was a bucket containing HIV fluid and a Kruger Rand was at the bottom of it, the person getting the Kruger Rand would wash their hands afterwards.
“No-one except a complete moron will not go and wash themselves afterwards.”
Kemp said that everyone knew even doctors who had been in contact with an HIV-positive person washed themselves afterwards.
‘You are in good hands’
The trial was briefly interrupted on Tuesday by a woman in the public gallery who asked the court for help, saying she had been raped.
The woman, who had sat silently at the back court, stood up when Van der Merwe walked in and began addressing him.
Van der Merwe asked her to step forward so that he could hear her and she stood in front of Zuma.
“I am tired of being raped, and I am tired of being abused,” she said.
The details were not exactly clear, but she mentioned the year 2002, the Zion Christian Church and six members of the church.
She also said she was tired of being abused by the bishop’s wife.
A cordon of bodyguards and policemen started removing her from the court, but Van der Merwe stopped them and asked investigating officer Norman Taioe to listen to her story.
He asked that Taioe report back to Charin de Beer, the state prosecutor in the Zuma trial.
“You are in good hands,” he said gently as the woman was led away.
Meanwhile, possible concerns about live broadcasts of the Zuma judgement had been resolved, Van der Merwe said.
E.tv and SABC would “work together” in televising the judgement, which would also be broadcast live on radio. - Sapa
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