Lawyers differ over rape grilling

Counsel for rape accused Timothy Omotoso has faced outrage for his cross-examination of Cheryl Zondi, who has accused the televangelist pastor of grooming and sexually abusing her since she was 14 years old.

But legal experts differ on what is best practice for questioning rape complainants.

The trial against Omotoso and his co-accused, Lusanda Solani and Zukiswa Sitho, began in the high court in Port Elizabeth last week. Omotoso has 63 charges against him, including racketeering, rape, sexual assault and human trafficking, all of which he has refused to plead to.

He is accused of having trafficked more than 30 girls and women who were from branches of his church to a house in Umhlanga, KwaZulu-Natal, where he allegedly sexually abused them.

Zondi first took the stand last Wednesday. Her cross-examination was concluded this week. Once proceedings were adjourned this Wednesday, Omotoso’s lawyer, Peter Daubermann, was reportedly followed to his car by a group of protesters, shouting at him to drop the case.

The lawyer’s cross-examination of Zondi, during which he suggested she was a willing participant in the alleged abuse, was the cause of the ire. During the cross-examination of Zondi on Monday, Judge Mandela Makaula had to reprimand Daubermann for asking her how many centimetres Omotoso had penetrated into her vagina during an alleged incident of sexual abuse.

“All those who are watching this on TV are just outraged … There is the general sense that he [Daubermann] went way overboard,” the National Prosecuting Authority’s head of communications, Bulelwa Makeke, told the Mail & Guardian.

“Ethically there has to be a certain limit in terms of how attorneys deal with this matter,” Makeke said.

But not all view Daubermann’s cross-examination style with outrage. BDK Attorneys director Piet du Plessis said: “In my view, as someone with 40 years experience, you have to do a proper job when it comes to cross-examination. Sometimes it has to be robust.”

Du Plessis argued that these are the conditions of a fair trial.

Another criminal law expert, who asked not to be named, agreed. “When you’re cross-examining in a rape case, your instructions as a lawyer are that there was no rape. You can’t be so sensitive towards the rape victim … because it’s your instructions that she wasn’t a rape victim.”

Both lawyers said that, if a defence attorney does contravene the rules set out by the Sexual Offences Act, it is up to the judge to step in.

Makaula intervened twice more: once after Daubermann had asked Zondi why she did not scream, and again when he suggested the complainant “knew that there was a risk of being raped”.

Advocate James Grant said that proponents of robust questioning fall into one of two general schools of thought regarding cross-examination. Grant falls on the softer side.

“A more subtle, gentle questioner is often able to extract from the witness the most damning admissions and contradictions,” he said.

Grant also noted that there are rules prohibiting irrelevant questioning. He said a question about the degree of vaginal penetration is “by definition gratuitous”.

Bronwyn Pithey, an advocate at the Women’s Legal Centre, agreed that the basic test for any cross-examination is relevance.

“But what happens is so much latitude is given to cross-examination — because of the underlying belief that women probably are not telling the truth — to expose so-called untruths.”

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.

Related stories

Fake trafficking news targets migrants

Exaggerated reports on social media of human trafficking syndicates snatching people in broad daylight legitimate xenophobia while deflecting from the real problems in society

Female cops sent for rape counselling

Brigadier Sifiso Cele denies the rape allegations, saying that they are part of a smear campaign and that criminal charges should have been opened if the accusations were true

ANC’s rogue deployees revealed

Despite 6 300 ANC cadres working in government, the party’s integrity committee has done little to deal with its accused members

Vet all school employees now to stop sexual abuse

How many times should we be outraged before real action is taken to prevent, and not just address, the scourge of sexual abuse in schools?

SANDF mum on serial rapist claim

An internal report on sexual offences at a military academy says the defence force failed a deceased rape victim and has called for an internal investigation

Editorial: Even police stations are unsafe for women

If a man has the temerity to shoot a woman inside a police station, in front of law enforcement officers, then the country has an even bigger GBV problem than it thinks.

Subscribers only

Toxic power struggle hits public works

With infighting and allegations of corruption and poor planning, the department’s top management looks like a scene from ‘Survivor’

Free State branches gun for Ace

Parts of the provincial ANC will target their former premier, Magashule, and the Free State PEC in a rolling mass action campaign

More top stories

Mboweni plans to freeze public sector wage increases for the...

The mid-term budget policy statement delivered by the finance minister proposes cutting all non-interest spending by R300-billion.

SAA to receive R10.5-billion government bailout after all

Several struggling state-owned entities received extra funds after the medium term budget policy speech

Malawi court judges win global prize

Members of the small African country’s judiciary took a stand for democracy to international approval

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday