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Mail & Guardian Online reporter and Sapa, Sapa-AFP08 May 2006 15:02
Former deputy president Jacob Zuma was found not guilty in the Johannesburg High Court on Monday of raping a 31-year-old HIV-positive woman at his Johannesburg home in November last year.
Judge Willem van der Merwe found that Zuma and his accuser had consensual sex in Zuma’s main bedroom, which meant he did not have to deal with the question of mens rea (intention).
However, the judge told Zuma in his judgement it was “totally unacceptable” for a man to have unprotected sex with a woman who was not his regular partner, especially knowing that she was HIV-positive. “Had Rudyard Kipling known of this case at the time he wrote his poem If, he might have added the following: ‘And if you can control your body and your sexual urges, then you are a man, my son’.”
The judge also said “he would not even comment” on Zuma’s evidence that he had a shower after the intercourse to lessen his chances of contracting the virus.
Large crowds of Zuma supporters were ecstatic outside the court when the verdict was announced.
Punching their fists into the air, they shouted “Zuma, Zuma”.
A core of the group was standing on a police armoured vehicle and ordered off, whereupon they climbed on to the roof of the Innes Chambers building. People cheered, waving their shirts from the roofs of buildings and climbing on to police cars.
Dancers in traditional Zulu dress performed in Pritchard Street as well as behind palisade fencing at the entrance to the court. The crowd slowly spilled beyond a police barrier that had confined people to Kruis Street.
Inside the court, hugs, cheers of joy and ululation marked Zuma’s not-guilty verdict. His supporters jumped on to the Johannesburg High Court benches, sang “uZuma yo my president” and shrieked and ululated.
Zuma held his lawyer Kemp J Kemp in a tight embrace and then moved down the line to thank the other four lawyers who helped secure his freedom. State prosecutor Charin de Beer picked up her bag and quickly walked out of court—without commenting. Zuma left the court soon afterwards, his bodyguards remaining mum.
When Zuma was asked how he felt after being found not guilty, he smiled and saluted.
Zuma’s version accepted
The judge said he accepted Zuma’s version of the case, which vindicated his ruling to allow the complainant’s previous sexual history.
Pressure groups and individuals should not jump to conclusions and express criticism before having heard all the evidence.
Although it was clear from the evidence a false accusation of rape was made, it had to be asked why the 31-year-old woman had gone through the trauma of the trial if she had not been raped, the judge said. For this, her history had to be looked at, which included a history of falsely accusing men of rape.
When she was confronted with these allegations, she denied knowing the men, or in some instances denied the accusations. This, Van der Merwe said, was because she could not admit that she had previously made false rape claims because then she would be found out.
He said it was clear she had experienced previous trauma. After having sex she might have felt guilty and ashamed, and that was why she accused Zuma of rape.
Evidence had been given that the woman was mentally ill.
Van der Merwe accepted the evidence of a number of church people who said the woman also accused them of rape or attempted rape. He said there was no reason for all of them to have conspired against her.
The judge rejected the evidence of two police officers, saying he was not impressed by them and could therefore not accept their version. Commissioner Norman Taioe, head of Gauteng’s detective services, and Superintendent Peter Linda, the investigating officer, testified that Zuma pointed out the guest bedroom in his Johannesburg home when asked to show them the “alleged scene of the crime”.
They also testified when Zuma was asked what happened in his bedroom, he replied “nothing”. Van der Merwe said there had been a clear breach of Zuma’s constitutional rights in the way the police had treated him.
He also rejected the testimony of trauma specialist Merle Friedman, who was called by the state, saying she had not made full inquiries into the woman’s past. She had also not used psychometric tests available to her to make a sound judgement of the woman’s character.
It would have been foolish for a man to start raping a sleeping woman if he did not know whether she would scream when she woke up.
Van der Merwe found it difficult to believe the state’s version that Zuma had raped the complainant when she failed to respond to sexual overtures.
“Why would a man be so foolish to start raping a sleeping woman if he did not know whether she would scream her head off?” he asked. “Especially with a uniformed policeman and his daughter nearby.”
He said the complainant had tried to convince the court that she had a “deep, father-daughter relationship” with Zuma, who denied this. According to evidence there were long periods when she did not see Zuma or had any contact with him.
She had also tried to convince the court that she was a close friend of one of Zuma’s daughters. This could only have been Duduzile. But, Duduzile testified she was “irritated” when she saw the alleged victim because she thought she was only at her father’s house to ask for money.
The complainant also did not recognise Duduzile when she first saw her.
Van der Merwe was not prepared to accept the complainant’s version of the relationship between her and Zuma. He said both Zuma and the complainant’s versions of what happened before and after the alleged rape were the same.
Van der Merwe made an order that the woman’s identity could not be revealed without her and the Gauteng director of public prosecution’s written permission.
He also ordered the woman’s kanga (wrap) be returned to her as she had asked for it while giving evidence.
Streets around the court were cordoned off and security was tight as thousands of people gathered outside the court while Van der Merwe presented a detailed assessment of the facts presented in the case.
He concluded his summary of evidence by lunchtime on Monday, saying there was good reason for this to be so lengthy. Selective media reporting on the case made the long summation necessary, he said.
Van der Merwe said he had to highlight certain material facts in the evidence presented to the court.
The judge also said the burden was on the state to prove beyond reasonable doubt that Zuma raped his accuser. He said this did not mean that the state had to prove beyond a shadow of a doubt that the alleged rape took place.
Van der Merwe made reference to a number of previous judgements.
He said the strength and weaknesses of both the state’s case and the defence’s case had to be taken into consideration. They were not separate cases, but rather a conglomerate of evidential material.
“The court must not be blinded by where the components come from,” Van der Merwe said.
He said there was no onus on the accused to convince the court of the evidence he gave. If there was any reasonable possibility that his explanation was true, he was entitled to an acquittal.
Zuma’s accuser, who considers herself a lesbian, alleged that on November 2 last year, the former deputy president raped her in the guest room of his Johannesburg home while she was staying overnight during a family crisis.
Zuma said that after receiving a number of sexual signals from her, including the wearing of a short skirt, he gave her a massage, removed her kanga, and they had sex in his bedroom.
She testified that she did not scream or resist because she “froze”, an explanation supported by a trauma specialist but later questioned by a forensic psychologist.
After weeks of frenzied media speculation, Zuma, who is 64, was charged in a low key court appearance on December 6. The trial began on February 13 and after a false start over the suitability of judges, Van der Merwe finally took control over the case.
The rape trial has dominated news headlines and opened debate on many issues, including cultural norms, sexual stereotypes, rape myths, post-traumatic stress disorder, activities in African National Congress (ANC) exile communities, and behaviour at an Anglican pastors’ training college.
Zuma, who is deputy president of the ANC, has said the charge is part of a political conspiracy to remove him as a candidate for South Africa’s next president.
He is still awaiting trial on corruption charges emanating from the fraud and corruption conviction of his financial adviser Schabir Shaik, a bidder in the controversial multibillion-rand arms deal.
Rhodes University’s dean of law, Professor Rob Midgley, said at the weekend that if Zuma was found not guilty, and had not violated his bail conditions, he would get his bail money back immediately and would be free to leave. The state could take the unusual step of appealing the verdict but Zuma would still be free.
Meanwhile, the Sunday Times reported that security bosses are preparing Zuma’s rape accuser for a life in exile in another country, out of fear for her life in South Africa. The decision to move the woman abroad followed a “high-level” security assessment undertaken by police officials, intelligence services and the witness-protection programme.
Security around the alleged rape victim has been so tight that she was not placed in the witness-protection programme out of fear for her safety, the newspaper reported.
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