/ 14 October 2016

Khwezi’s trial: A nauseating read

Sickening: Jacob Zuma’s supporters gathered outside the court on the day Judge Willem van der Merwe acquitted him of rape.
Sickening: Jacob Zuma’s supporters gathered outside the court on the day Judge Willem van der Merwe acquitted him of rape.

Do you feel like reading something really sick this week? You have a few options. You could feast your eyes on the transcripts of the recordings in which Donald Trump boasts of grabbing women by the pussy, but I suspect you already have. Or you could take a trip down memory lane, and revisit the 2006 judgment in which Jacob Zuma was found not guilty of rape.

It’s 174 pages long, so you’ll need to have a strong stomach to get through it all. Judge Willem van der Merwe, who delivered the verdict, is not what one would call a master prose stylist. He also struggles a bit with spelling: “lobola” becomes “labola” in his version, to give one example.

The judgment is not without personality, however. Van der Merwe clearly retained some irritation at the three nongovernmental organisations — the Centre for the Study of Violence and Reconciliation, the Centre for Applied Legal Studies and the Tshwaranang Legal Advocacy Centre — which unsuccessfully applied to appear as friends of the court in Zuma’s trial, to present evidence on the effect of rape.

These groups, he wrote in his judgment, “unnecessarily sidetracked everyone’s attention”. The judge adds snidely: “The organisations, however, succeeded in informing the entire world of their existence.”

During the trial, the judge dismissed their application on the grounds that he could not see “how the applicants can assist me in any way on matters I am to decide on a factual basis”. I hate to split hairs with such a learned man of the law, but I would suggest that Van der Merwe’s written judgment indicates a few aspects in which he could have benefited from understanding a little more about rape.

There are, for instance, repeated references to what a “foolish” rapist would do. By way of exonerating Zuma, Van der Merwe wrote: “Only a foolish, overconfident rapist would have dared entering the room of his victim not knowing whether she is going to shout and scream or not.” Is that as opposed to what the “good” rapists would do, Your Honour?

“As far as the rape itself is concerned,” the judge wrote, “there are a few very strange and odd features.” It is “very odd”, he thinks, that Khwezi did not utter a single “no”. It is “very odd” that the rape would take place with a policeman nearby. It is just mind-blowingly bizarre, according to the judge, that “during the ‘rape’ the accused uttered words of endearment to the complainant, not a single one whereof has the connotation of dominance or abuse”.

Khwezi’s weight was repeatedly mentioned, to make the point that she surely had the necessary heft to fight off a rapist. The judge appears to have accepted, without quibbling, Zuma’s account that one of the ways in which he knew that Khwezi wanted sex from him was because of “the skirt she wore when she visited him on 2 November 2005 instead of pants”.

The point at which the trial shifted gears to a truly gruesome spectacle came when Van der Merwe agreed with Zuma’s lawyers that they should be allowed to crack Khwezi’s sexual history wide open for cross-examination. At one stage she was required to write a list, in the courtroom, of her previous sexual partners.

As she wrote, a policeman craned over her shoulder to try to read her words, prompting the judge to joke that the cop would get a shock if he found his name there. Hilarity ensued.

Part of why it was felt necessary for Khwezi to be exposed in this manner was the clear confusion on the part of the court about her sexual identity. She told the court that she identified as a lesbian, but in that case how could she ever have had sex with men in the past?

“She is not an out-and-out lesbian,” the judge concluded.

The words “admitted” and “conceded” litter the judgment, as though they refer to confessions shrouded in shame.

The judgment dwells heavily on the fact that Khwezi was receiving therapy because she was so “confused and troubled”.

By contrast, we are given zero insight into the psychology of the man accused of raping her. Instead, we receive a potted CV of Zuma’s struggle hero credentials: “The accused played a prominent role in trying to resolve the problems between the ANC and Inkatha.”

Despite Khwezi being so confused and troubled on the one hand, the judgment ultimately concludes on the other that she “is a strong person well in control of herself knowing what she wants” — that is, she can’t be raped.

Today, Zuma is president of South Africa. Van der Merwe was promoted to deputy judge president. But “Khwezi” Fezekile Kuzwayo is dead, following a decade spent living as a fugitive.

It’s a tale as old as time, about powerful men and the women who cross their paths, and it should make us all feel more than a bit sick.