A total of 174 pages, prompting 174Â 000 opinions. Monday’s judgement in the State v Jacob Zuma has been like the trial itself: divisive and difficult.
The not-guilty verdict is one we respect; the reasoning in the judgement is thorough and well-researched, if conservative.
The state did not prove beyond reasonable doubt that Zuma had raped the woman known as “Khwezi”. And while critics say that Judge Willem van der Merwe gave too much credibility to Khwezi’s sexual history, it is worth reading his rationale for allowing such testimony. “The evidence of and regarding Sithole, Nestor, Matsoko, Modise, Mahlabe and Mbambo [whom the complainant had previously accused of rape] was not led to show that the complainant was of loose morals [but] that the complainant was inclined to falsely accuse men of having raped or attempted to rape her.” There does seem to have been a pattern, on which Judge Van der Merwe partly based his finding that there had been consensual sex on November 2.
Aspects of the judgement are, indeed, worrying and could militate against the more vigorous reporting and prosecution of rape, but the public should take the opportunity to engage with it. It reflects an outdated concept of rape which is out of kilter with South African trends. While Judge Van der Merwe made it clear that he had read the Sexual Offences Bill, intended to purge our courts of archaic prosecutorial practices, his world view is clearly conservative. He shows no knowledge of the difference between acquaintance and stranger rape, giving credibility to the defence argument that the woman did not make enough noise and discounting the view that a raped woman will often freeze.
More than half the rapes in South Africa are perpetrated by people known to their victims. Such power dynamics inevitably affect the woman’s response. Whether or not there was a father-daughter tie, there was a relationship of respect and family connection between Zuma and his accuser.
The judge found it significant that the complainant had not been threatened or physically injured. He appears to have been persuaded, too easily, that the woman was a stereotypical siren who lured Zuma with her kanga and SMSs. He sidestepped Zuma’s use of Zulu culture to explain why he could not leave a woman in “a state of arousal” and why he thought a woman with a skirt riding above her knee was inviting sexual attention.
For the first time ever, the South African masses watched a rape trial. While the verdict may be sound, the judgement missed an opportunity to strike a blow at misogynous stereotypes. For this, a weak prosecution and the delayed reaction of rape activists in attempting to have themselves appointed friends of the court must take some of the blame. The trial and the judgement also underscore the urgent need for more rigorous training for the judiciary, to ensure that the winds of non-sexism blow more strongly through its sequestered corridors.
If …
If only you hadn’t said: “And I said to myself that I know as we grew up in the Zulu culture you don’t just leave a woman in that situation, because if you do then she will … say that you are a rapist.”
If only you hadn’t said of the post-coital shower: “It … would minimise the risk of contracting the disease [Aids].”
If only you hadn’t said that the way your rape accuser wore her skirt sent a message: “If a woman is dressed in a skirt, she will sit properly with her legs together. But she would cross her legs and wouldn’t even mind if the skirt was raised very much.”
If only you had not admitted to entering a woman without ijazi ka mkhwenyana the husband’s coat, or condom.
If only you hadn’t been the subject of Judge Hillary Squires’s statement, in the corruption case against your financial adviser, businessman Schabir Shaik: “Since all the accused’s companies were used at one time or another [238 times in total] to pay sums of money to Jacob Zuma in contravention of … the Corruption Act … all the accused are found guilty.”
Can you bear as Rudyard Kipling urges us to hear the truth you’ve spoken?
Much has been made of Zuma’s apology to the nation this week for his misjudgement in having unprotected sex with an HIV-positive woman.
Together with his “magnanimous” gesture of forgiveness to the woman shepherded shamefully out of the country into exile late on Wednesday night, it was part of a package of gestures aimed at relaunching his bid for the Presidency.
In the tumult of succession South Africa is about to enter, if Zuma will not hear the truth he has spoken, other South Africans must.
For ours (all of ours, not just those of us who are “100% Zuluboy”) is the country and everything that’s in it.
[With thanks to Rudyard Kipling.]