/ 5 May 2006

J-Day: The judge who cannot win

It’s not every day that a trial judge, hearing a case that could culminate in a 15-year jail sentence, wishes the accused a happy birthday. Even more eyebrow-raising was the rider: “I hope your next 64 years are better than your first.”

As the spotlight falls on Judge Willem van der Merwe — he begins handing down judgement in the Jacob Zuma rape trial on Monday morning — it is fitting to reflect on his unusual style.

Perhaps to neutralise some of the intense emotion around the most politically charged case in the post-apartheid era, he has been the model of affability, charming the media, the public gallery and the lawyers.

He has, for example, hinted that he would not be averse to having a group picture taken with the reporters covering the trial.

When Zuma’s counsel Kemp J Kemp apologised that his junior advocate’s wife was soon due to give birth, hence his need to keep his cellphone on vibrate, the judge murmured: “I hope you keep us all informed. We’d all like to hear when the happy news arrives.”

More than once he has provoked loud laughter. On the last day of argument, Kemp urged the court to reject the prosecution line that Zuma had relied on Zulu tradition and culture to justify some of his actions, including his claim that it would be “un-Zulu” not to satisfy a sexually aroused woman. He cited Nikos Kazantzakis’s work Zorba the Greek, saying the novelist had been flayed by his fellow Greeks for failing to give a faithful account of Greek tradition.

Judge Van der Merwe responded: “I don’t want to refer to the Greek people at the moment. We are talking about Zulus.”

Even apartheid hit squad killer Eugene de Kock, sentenced by Judge Van der Merwe to two life terms, could describe him as “a scrupulously fair and a straightforward judge”.

Judge Van der Merwe has shown himself willing to court unpopularity. He was one of the three judges who dismissed the Democratic Alliance application to allow voters who did not have the bar-coded identity document to vote.

He also sentenced four policemen to between four and five years for the “cruel and sadistic” act of setting dogs on three illegal immigrants.

His off-the-cuff remarks in the Zuma trial suggest an old-fashioned gentleman, rather than merely an officer of the court.

“I am sorry for being rude. I have told all other witnesses that they have the option of standing up or sitting down [when giving evidence], but I forgot to tell you,” he told one witness. It was not the only time he was “rude”. After interjecting when a witness was speaking too softly from the stand, he called himself to order: “If I can’t hear you, they [pointing to the gallery] can’t hear you too and some of them are older than me. But I’m sorry, I interrupted you — bad manners from my side.”

This does not mean his conduct of the trial has been lax and omnitolerant. Earlier, Judge Van der Merwe showed his teeth when a loud, repeated banging could be heard, apparently from the floor above the courtroom.

He threatened to deal harshly with anybody disrupting proceedings. But he grinned engagingly when the court marshal returned with the news that the workers responsible for the racket had no malicious intent.

Judge Van der Merwe started on the back foot in the Zuma case, which fell into his lap after the division’s Judge President, Bernard Ngoepe, recused himself and the latter’s deputy, John Mojapelo, declined to hear it because he had had a relationship with Zuma when both were in the African National Congress underground. Judge Jerry Shongwe ruled himself out on the grounds that he was the uncle of one of Zuma’s children.

From these inauspicious beginnings, he seems to have won everyone’s confidence — with perhaps one exception. It is fair to say that when he decided not to allow three NGOs as friends of the court because they would not add value to the proceedings, the fact that he was a middle-aged man came into the reckoning.

Wrote journalist Gail Smith in City Press: “The amicus [curiae] provided the prospect of evening out the fight and bringing substantial resistance to the thuggish posturing of the Zuma supporters from a powerful bloc that wouldn’t be cowed by their bully-boy tactics.

“This could have signalled to the male judge that irrespective of how learned he might be, the experience of rape survivors lies far outside his experience.”

However the gavel falls next week, Judge Van der Merwe will antagonise one or other body of opinion. If he finds for Zuma, his gender will come under the spotlight; if for the complainant, his skin colour will be seen by many as decisive.

Someone is bound to remember that he is a man, or a white with an Afrikaans name.

The trial has posed a dilemma: has South Africa’s criminal justice system evolved sufficiently to deal with the female experience of rape? Or should it be further transformed in another direction, to accommodate culture as a shaper of action?

At one level, Judge Van der Merwe must adjudicate between conflicting world views. He can’t win. But his conduct of the trial suggests that he will try his utmost to be fair.

The 10 big issues on the judge’s mind

These are the 10 key issues Judge Willem van der Merwe will brood on as he writes his judgement this weekend:

Credibility: The court heard two mutually exclusive versions of the alleged rape at Jacob Zuma’s Johannesburg house on November 2 last year, meaning that Judge Van der Merwe must accept one and reject the other. The credibility of Zuma and his accuser, and of the witnesses who testified for both sides in courtroom 4E of the Johannesburg High Court, is thus crucial. In turn, credibility will hinge on:

Location: The judge must decide between conflicting versions of where the sexual encounter took place, as this goes to the issue of whether the complainant enticed Zuma. The state claims it happened in Zuma’s bedroom, the defence insists it happened in the guest room where the rape complainant was sleeping.

The failure to call Hulley: Police witnesses testified that Zuma told them the sex took place in the guest room, but their evidence was challenged on grounds that they failed to read him his rights. The state has argued that the failure to call Zuma’s lawyer, Michael Hulley, who witnessed the police interrogation, is fatal to the defence objection.

Sexual history: The state has asked that the court not take account of the complainant’s sexual history. The defence has led testimony designed to show that she has a history of false rape accusations.

Mens rea (intention): South African law requires that one have the criminal mind-set for an act to be deemed a crime. The issue here is: did Zuma honestly believe that his accuser, through her dress and demeanour, wanted sex with him?

Father-figure role: The complainant says she would not have had sex with Zuma because he was her father’s friend in the 1950s, co-accused in a terrorism trail and fellow prisoner on Robben Island. She, therefore, regarded him as a father. He argues that the relationship is not that close, as they met again 16 years after the return from exile.

Exile “trials”: Defence evidence that the complainant lied about being raped in exile by African National Congress operatives is likely to hold little water. She was a minor and therefore legally incapable of consent. Secondly, “judgements” of the ANC’s quasi-tribunals in exile have no standing in a properly constituted court.

The testimony of the “Men of God”: Of greater weight is likely to be the evidence of priests and trainee priests who accuse the complainant of falsely claiming they raped her. This will, however, have to go into the mix with all the other evidence.

Freezing: The judge will have to weigh the complainant’s claim that she did not fight Zuma or scream because she “froze” on seeing him naked at her bedside with an erection. The defence disputes this, arguing that she was able to remember Zuma asking if he could ejaculate inside her, and what she said after sex.

Psychological evidence: Clinical psychologist Merle Fried-man testified that the “freezing” of the complainant was one of a range of reactions consistent with that of being a rape survivor. This was disputed by forensic psychologist Louise Olivier, who argued that the clinical testing was not conclusive and the complainant had been too lucid in remembering the incident to suggest she froze. — Fikile-Ntsikelelo Moya

The kanga — the new cigar?

For generations in villages across the sub-continent, the humble kanga has been the hallmark of female modesty and respectability.

Kangas are handed out at political rallies emblazoned with slogans and the faces of political leaders, and used as slings to carry everything from babies to food. In many countries to the north, any woman attending a funeral without one would be deemed disrespectful to the bereaved family.

Our northern neighbours would be flummoxed that the Zuma rape trial has seen the humble wrap-around elevated to a watchword for seduction. “But she was wearing a kanga, m’lud” has been the scandalised refrain throughout the trial, as if the mere mention was a self-evident indictment of the rape complainant.

For most of the continent, the kanga has been right up there in the sexiness stakes with the Voortrekker kappie and the Zionist Christian Church’s manyanyatha boots.

Not since the Lewinsky/Clinton scandal, when a cigar ceased to be a cigar, has such a mundane object achieved such a transformation in the public mind, from everyday household object to a cue for lifted eyebrows and nudged ribs.

Just as a generation of American rappers has reclaimed the N-word, last week a group of South African women braved Jo’burg’s arctic temperatures to reclaim the K-word.

Dressed in what is essentially a thin length of cotton cloth, the members of People Opposing Women Abuse braved the chilly weather and the jeers of Zuma’s supporters to re-appropriate their right to wear the kanga — anywhere, any time. — Nicole Johnston