The Witness | 12 May 2006

Judgment in the Zuma trial constitutes a major setback for women’s rights, writes KRISTIN PALITZA

South Africa’s former deputy president Jacob Zuma has been found not guilty. This was Judge Willem van der Merwe’s verdict based on the evidence presented to him. But the truth will only be known by two people — the complainant and the accused.

What will remain — as a legacy to all South Africans — are the implications of the trial for women’s rights and violence against women.

The judge concluded that consensual sex took place between Zuma and the 31-year-old HIV-positive Aids activist dubbed Khwezi. He gathered this, firstly, by deciding that she was not a lesbian, as she claimed, but bisexual with lesbian tendencies. In other words, it was possible that she would willingly engage in sex with a man.

What was also used against the complainant was her statement that although HIV-positive people should practise safe sex, it was ultimately the decision of each individual to do so. According to Van der Merwe, this assertion showed that Khwezi might have used her discretion when having sexual intercourse with Zuma, and he therefore turned down the argument that HIV-positive Khwezi would not have agreed to unprotected sex. But isn’t there an alternative interpretation? Khwezi’s statement could be read as a personal commitment to safe sex, while refusing to deny the right of other HIV-positive persons to make their own decisions.

Without forensic evidence available to him, Van der Merwe based his verdict on who seemed to be the more credible person. He found that in this “unique case with unique features”, it was “relevant” to take the complainant’s sexual history into account. After he publicly paraded Khwezi’s sexual history, he decided that it was Zuma’s version of the incident that was the most reliable.

All South Africans are now likely to believe that Khwezi is a serial rape accuser. Although it is true that her past does not particularly work in her favour, we cannot conclude with certainty that she lied. Who is to say that all the men she allegedly accused of rape in the past told the truth? Not even half of these “cases” have come to court and some are based on hearsay.

The judge did not apply the common legal rule that bad character evidence does not presume bad acts. Instead, he ruled that the complainant’s history of “false” rape accusations eroded her credibility.

Van der Merwe also chose to ignore the fact that many of the alleged rapes took place when Khwezi was under age and thus any sexual act performed on her as a minor would, according to South African law, equal molestation and/or statutory rape. He also disregarded the fact that, because the majority of the rape allegations never came to trial, his inquiries about events that took place more than a decade ago became “he-said-she-said” reports, without providing factual evidence.

His judgment then raised the question of why Khwezi would have chosen to go through the trauma of the trial. And here, again, Van der Merwe opted to agree with the statement of male testifiers (who do not have psychological qualifications) that Khwezi is “a sick person who needs help”. The judge decided it was likely that, based on her sexual history, the complainant perceived any sexual behaviour as threatening and concluded that she was pretending to be a meek, submissive person, while she was, in fact, “a strong person who knows what she wants”. It was, therefore, unlikely that Khwezi would not have screamed when raped, especially if the accused surprised her when she was already asleep.

What Van der Merwe failed to consider is how charismatic and influential men can easily abuse their power, especially when dealing with easily manipulated women with a traumatic past. Yet the judge concluded that only a “foolish, over-confident rapist” would return to the crime scene to talk to his victim and thereby pre-supposed Zuma’s psychological profile and abilities.

Why did he not find it necessary to have Zuma’s psyche studied professionally to establish what he is or isn’t capable of, rather than making his own assumptions, especially since Zuma is well-known to all South Africans as an enigmatic, confident and self-assured public figure?

Van der Merwe did not take into account that it is hard to predict how a woman will react when being violated. He argued that the following points indicated consensual sex: Khwezi didn’t scream; she said “no” twice to the massage but not to the penetration; she did not call the police or lock her door; and she did not leave Zuma’s house immediately after the incident. Yet, there is simply no way of drawing unanimous conclusions about how people react in a certain situation. And why did Van der Merwe think it was appropriate to generalise about women’s behaviour in this instance after insisting on the “uniqueness” of the case when deciding upon the relevance of the complainant’s sexual history?

It is true that one possible interpretation of Khwezi’s actions could be that she was comfortable with their sexual interaction. But it is equally probable that she did not leap into action after the intercourse because she was heavily traumatised, confused, intimidated and extremely frightened of the prospect of taking on one of the most powerful men in the country — not to mention a man whom she openly supported and idolised.

Curious also was how effortlessly the judge brushed aside the analysis of the complainant by state-appointed Dr Merle Friedman while deciding that the findings of Dr Louise Olivier, paid by Zuma’s defence team, were the more trustworthy. Even if Olivier’s statement, that only 10% of women freeze when raped, is correct, who is to decide that Khwezi does not belong to this minority?

It is true that the complainant undermined her own credibility by refusing to be examined by Olivier but, then again, who could blame her, especially since it is public knowledge that Zuma paid an estimated R1,2 million to R1,8 million for his defence, including Olivier’s fee? Why was no effort made to provide an independent psychologist to analyse the psyche of the complainant?

We must also note that while the judge did not consider Khwezi’s mother a reliable witness because of her emotional bias towards her daughter, he had no qualms about taking statements made by Zuma’s daughter, Duduzile, as the truth.

Another important reason for the verdict was that the judge did not accept the complainant’s claim of having a father-daughter relationship with Zuma — because they had been out of touch for more than 10 years and Duduzile denied that Khwezi was a good family friend. Here, the complainant’s statement stands directly against Zuma’s daughter, and the judge decided to believe the latter.

Van der Merwe went further when he concluded that now that he had established that there was no paternal relationship, Kwezi’s cellphone messages to Zuma, signed off with “love, hugs and kisses”, must have been meant as sexual invitations.

The judge described the complainant as “inappropriately dressed” (again, largely based on a comment by Duduzile) and observed that Khwezi did not object to Zuma coming to her room despite previous sexually-charged conversations. In other words, it came down, once again, to the old justification of the woman having acted proactively and in a way that invited and encouraged a sexual encounter.

It is a major setback to women’s rights that a woman’s sexual history, clothing and “inviting behaviour” has once again been used to her disadvantage, while the man’s sexual history has not even been discussed.