LegalBeagle

State v Zuma: Crying Wolf as an offensive defence?

It's been on everyone's lips and has captivated the entire nation for months on end. Now, fans of Jacob Zuma jubilantly sing songs of his triumph with the knowledge that their "hero" is not a rapist. A criminal, perhaps, but not a rapist.

Having followed, although somewhat loosely, the Zuma trial, there were a number of occurrences throughout the trial which made me pause, briefly, and consider certain 'deficiencies' in our criminal justice system. Before continuing I must stress that yes, there are a lot of deficiencies in our criminal justice system, but there were only a few which I noticed due to the happening of this trial.

In order to fully appreciate the 'Crying Wolf' segment of this article, one must first understand a very basic principle of Criminal Procedure: Evidence of an accused's prior convictions is only allowed to be led at the sentencing stage of the trial. For example, the Court may not hear evidence about a person's prior convictions for theft, even if he is standing trial for theft. The rationale is that even if the State proves that the accused has a propensity to commit the crime of theft, it does not prove that he committed theft in this instance! Once evidence has been led with regards to that particular act of

theft and the Judge or Magistrate hands down a guilty judgment, the matter then goes on to sentencing stage.

At the sentencing stage, the State can lead evidence of the guilty party's prior convictions for a similar offence to show that the guilty party is prone to committing that crime and/or he has not learnt from previous sanctions imposed by the court (keeping in mind that these prior convictions are only those for which the guilty party has been caught and convicted!). If it is shown that the guilty party has disregard for the law and a propensity to commit such crime, the Magistrate or Judge will impose a higher sentence on such guilty party than he would on a 'first offender' - someone who does not have a record of committing the same offence time and again.

One might wonder at this point what this would have to do with the Zuma trial as he was not convicted and therefore his trial did not reach the sentencing stage. Quite simply, it has nothing to do with Zuma. As I'm sure you know, the complainant was given quite a severe grilling by Kemp J Kemp SC, Counsel for Zuma, about her sex life and previous accusations of rape against various men. Now, I would refer the reader to a story we all should know, that of the boy who cried "Wolf!".

It seemed highly inappropriate to me that any weight could be given to the evidence that the Complainant in the Zuma case had previously accused men of raping her. Simply because her previous

accusations had been 'hot air', does not mean that, in this instance, her accusation was also 'hot air'. I am also not convinced by the argument that such evidence showed the complainant to be somewhat of a pathological liar when it came to sexual encounters, however small. The Complainant should have to be proven a liar on the evidence of the night in question, not on matters which occurred years ago! No weight whatsoever should have been given to evidence of the Complainant's prior rape claims as I believe that it does not prove that this particular accusation was unfounded!

Imagine the scenario where a convicted rapist's prior convictions for rape are not admissible evidence at trial stage, but the Complainant's prior accusations are! I do believe it is scenarios like these that prompt the outcry 'Criminals have more rights than victims'!

On that particular note, I would also like to comment on the accused, Jacob Zuma. In rape trials and those of a sensitive nature, the Complainant is often left unnamed. However, right to equality considered, is it not horribly unfair to allow the public to know the name of the Accused? If one were to take the current example of State v Zuma, the Complainant (although probably known to thousands by now...) remains anonymous whilst Mr Zuma is left fending off blows from the public and critics alike. How, considering a verdict of not-guilty was handed down, is that

fair? The accused, having been exonerated, is likely to face skeptics who have little to no faith in the judgment and still believe him to be the rapist who wasn't convicted. Think of how you would feel if someone publicly accused you of being a rapist, fraudster or murderer, even though it was a totally fanciful allegation? And think of how your name would get dragged through the mud, with friends and family now having doubts about the person you are, whilst the complainant gets to rest easy behind anonymity!

"There is no such thing as 'innocent until proven guilty'. If they thought you were innocent, they wouldn't have arrested you."

- Anon

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