For some, the long-term significance of the case has little to do with the law and much to do with the prospects of an ambitious politician who wishes to be president of the republic. Historians and political scientists can be left to analyse whether it was this trial or other reasons that finally sunk the Zuma battleship or resurrected his prospects. But a more lasting legacy of State v Zuma may be its implications for the capacity of the legal system to hold sexual offenders accountable to the law.
Like this columnist, few readers of this article have read the trial record, and have had to rely on press coverage, which is often a hazardous occupation. But even on this limited basis, the question arises: has the conduct of this trial acted as a major deterrent to rape victims to report such crimes?
While the press proclaimed Jacob Zuma’s senior counsel, Kemp J Kemp, as the greatest South African advocate since their bestowal of that accolade upon Kessie Naidoo of Hefer Commission fame, the essential inquiry as to the ethics of legal representatives in these cases remained unspoken and unanalysed.
Use of the word ethics should not be misconstrued. Kemp performed his task with integrity, energy, great skill and diligence. But was the defence of Zuma conducted with fidelity to the underlying principles of our constitutionally sourced legal system?
Obviously, a defence lawyer has a duty to his or her client to create, at the very least, sufficient doubt in the mind of the court so that a conviction cannot be made beyond the requirement of reasonable doubt. Zuma’s counsel had every right to present his client’s case in the way that he considered would produce that favourable result.
But there are limits to what a counsel can do in court. For example, counsel cannot mislead the court, or make submissions that he or she knows to be untruthful. But are the ethical boundaries drawn even tighter? Does the defence lawyer owe a duty to the spirit of the law? Even as he or she strives to represent the accused and obtain an acquittal, can the nature of the defence reproduce any stereotype that the legal system wishes to transform?
For example, in a rape case, is it permissible to exploit the age-old stereotype of the siren, the seductive woman from whom the poor man had no chance to keep his trousers up? How ethical is it to seek to make an accused of the complainant?
In the Zuma case, the complainant was subjected to days of cross-examination concerning intimate personal details, few of which bore directly on the charge. A veritable battery of pastors was produced to testify against her, even when at least one witness may have perpetrated shocking acts. It was as if there was no shame in anything done to defend the accused.
Among the disquieting aspects was the claim that the culture of the accused forced him to have sex with the complainant because, dressed in a kanga, she had asked for it. Similarly, it was suggested that the taking of the shower so annoyed the complainant (washing away the deed?) that this prompted the charge. Was the claim that a shower might reduce the danger of being infected with HIV therefore a deliberate defence manoeuvre?
Judge Willem van der Merwe found the cross-examination to be appropriate and fair in the circumstances. Unquestionably, a defence lawyer faced with the manner in which the state presented its case is entitled to probe the complainant about her record of unprotected sex. But is it ethically permissible to rake in every pastor who is prepared to speak of his own sexual desires and so crush the reputation of a complainant?
Judge Van der Merwe’s take on the existing law relating to rape shield notwithstanding, was this evidence fundamental to the defence? As the judge disbelieved almost everything of the complainant’s story, much of the breach of her previously private life might have been unnecessary.
Faced with this line of defence, how are we to expect rape victims to come forward in the future and press charges?
The manner in which the defence was conducted in this trial may well have taken our law back to the dark days before our Constitution and its protection of gender equality, when stereotypes of women were commonly employed in rape cases.
The judgement also raises questions about the court’s general approach to sexual behaviour that leads to the astonishing level of rape in South Africa. When the judge asked, for example, 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, especially with his daughter and a policeman nearby, the answer many victims would give is that rape is not a rational act.
If anything, this case must prompt a discussion about the ethics of lawyering in rape cases, as well as the state of our law in protecting complainants and simultaneously giving an accused a fair trial.