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What the 2006 Rape Trial of Jacob Zuma still teaches us about rape (Part 1)

In 2006, South Africans watched as a deeply disturbing chapter in the country's history unfolded before their eyes. A politician, whom they had adored and worsh...

fentse_writes 8 min read · 2 months ago

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In 2006, South Africans watched as a deeply disturbing chapter in the country's history unfolded before their eyes. A politician, whom they had adored and worshipped, was accused of rape. The trial took place in 2006, running from March to May of that year while the incident and the formal charges were laid in 2005.

The complainant Fezekile Ntsukela Kuzwayo was given the pseudonym "Khwezi" during the trial to protect her identity and safety amid public hostility. Her supporters ranged from local and international feminist groups, human rights organizations and the One in Nine Campaign among many. These were people and groups that were actively opposing the Zuma supporters who had harassed and tormented Khwezi.

While the intention of my writing is not to go into every single detail of the trial as published on the SAFLII website, I use selected parts of the proceedings to examine what the trial reveals about rape, who is deemed "rapable," as explored by Pumla Dineo Gqola in Rape: A South African Nightmare, and how these ideas continue to manifest in contemporary South Africa.

what-the-2006-rape-trial-of-jacob-zuma-still-teaches-us-about-rape-part-1

Who was Khwezi?

Khwezi's world is one "where fathers protect and don't rape, where women can speak out without fear for their safety, and where no one, but no one is above the law..." - An excerpt from I am Khanga Poem by Fezekile Ntsukela Kuzwayo

South African History Online details how unknown Khwezi's life was beyond the rape trial. As the daughter of Chief Representative of the ANC Judson Kuzwayo, it notes how much of her early life was spent in exile.

In my reading of the extensive judgment published by SAFLII, her courageous poem published on the One in Nine website, Gqola's narration of the public's reaction to the trial in Rape: A South African Nightmare, and many other commentary of the trial by the Mail and Guardian and other publications, my idea of Khwezi is one that is influenced by her bravery.

She described herself to be someone that was armed with African proverbs - "a vehicle for communication between women". This statement sat with me as a I read the poem because proverbs, within African cultures, are rooted in the transmission of knowledge and wisdom from one generation to the next. Her allusion to proverbs as something with which she is "armed" with suggests that her story cannot simply be erased or forgotten. Instead, it becomes part of a collective memory, carried forward through generations and preserved through the very act of storytelling. And so, to share Khwezi's story is to form part of this next generation and to become the daughters, granddaughters, and great-granddaughters she never had.

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Her story, as someone who had suffered rape from a very young age, is one that we sit with as a generation of South African women plagued by the high Gender-Based Violence Statistics in our country.

Although we can never fully make sense of why the case was handled the way it was handled by the judicial and criminal justice system, or why the verdict towards the end was ever perceived to be just or fair, we can formulate conversations and build advocacy so that the world she aspired and dreamed of can come into fruition. And so that we, as custodians of this world, can take part in it.

Khwezi was unbreakable, unstoppable, and untamable. Even with the torment and the desperate attempts to silence her, a new generation stands in solidarity with her.

In the High Court of South Africa: S v JZ (Part 1)

On the 2nd of November 2005, Khwezi was invited to Zuma's house in Forest Town, Johannesburg.

The key elements of this day would be the room Zuma had urged Khwezi to sleep in, Zuma's study room, and the Khanga Khwezi had worn which had become relevant in conversations surrounding her rape.

Despite noting how she had turned down Zuma's requests to massage her twice in the room, she was still asked (and I directly quote) - "Did you give him your consent or was there anything in your conduct which could have led the accused to believe that you gave him consent to have intercourse with you?"

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Before reading her obvious response, I pondered a little bit more about this question. Initially, I was of the assumption that the question was posed by Zuma's defense team but I later learned that it was the prosecution that posed this question. The question may have been on the basis that they knew Zuma's defense team would claim the intercourse was consensual and that there was nothing the complainant had done to resist or stop the sex. This was because the complainant, herself, had shared how she had frozen or didn't scream out for help during the rape. And so, it seems that the premise of the question by prosecution was to eliminate the defense's potential argument by making it clear that the complainant did nothing to "lead the accused to have sex with her". So no, it wasn't what she was wearing or anything else they might have tried to use to allude to consensuality.

The idea that this was a potential argument expected from the defense team by prosecution and possibly an argument or question that would have been admissible in court, hence prosecution decided to immediately eliminate it with the leading question, shows us what our judicial system in South Africa believes about rape. A question or argument of that nature should not be admissible in court by both the defense or prosecution because to imply that there was something that the complainant had done to consent to the sex simply means that there is no understanding of consent at all. And for a judicial system to accept such a question or argument means that the system in itself lacks the foundational principles of what consent means.

You cannot eliminate a baseless argument because rape, in itself, is simply the absence of consent. And the absence of consent does not rely on who was "led, tempted, or encouraged". There is either consent or no consent. There is nothing in between nor is there any grey area. It's either a yes or no, never a maybe, and consent has nothing to do with a person's attire. The baseless-ness of the argument should have eliminated itself entirely without the help of prosecution and been deemed inadmissible in court.

That question is also relevant to conversations surrounding rape culture today. It perpetuates the harmful ideas that someone could be led to rape, tempted to rape, or encouraged to rape.

In my continued reading, I later learned that due to the question being a leading question by prosecution, it is usually a forbidden practice by prosecution to ask their own witness leading questions during the examination-in-chief. Prosecution brought up that question and initiated the application regarding Khwezi's sexual history, through the judges' grant of special permission, to what may have seemed like their attempt to control the narrative and to defuse the defense's planned arguments before they could them to shock or discredit her.

The aspect of bringing Khwezi's sexual history in question was one that completely bewildered me to say the least. Thinking through this question and the argument surrounding it left me spending days wrestling with a sense of disbelief and disappointment in a judicial system that was meant to uphold justice and, to some extent, afford the victim the protection and liberation that the Constitution promises women. The decision to bring Khwezi's sexual history into the trial, in particular, felt to me as though it worked against these very principles.

Although the judge went into extensive detail, as I will discuss in the second part of my analysis of the trial, about how and why Khwezi's sexual history was deemed relevant and ultimately admitted as evidence, I am still left with a deep sense that the ruling was grossly unjust.

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"When a rape closely resembles what the hearer expects a rape to look like, then the survivor's tale is plausible. Plausibility is about, and dependent on, the hearer and what that hearer deems possible; it is not about the specific person speaking" - An excerpt from Rape: A South African Nightmare by Pumla Dineo Gqola.

The Constitution as an "Aspirational Document" - Homi Bhabha's 2002 phrase

In reading Rape: A South African Nightmare by Pumla Dineo Gqola, I moved away from the rigidness of trying to understand Sections within law and being bombarded by the lengths and technicalities of reading such judgments and stepped more into the humanness you probably felt when I was relaying who I think Khwezi was in the first part of this article.

Borrowing from Homi Bhabha's phrase, Gqola makes a significant reference to the constitution as being an aspirational document in the sense that it promises, gives hope, but is in no way the lived reality of South Africans.

If we have judicial systems that are not held accountable in the way that they handle and apply the law in such matters, we shouldn't sit and be surprised when citizens begin carrying the same attitudes - that someone has to be "led, tempted, or convinced" for consent to be viable and that a court of law will allow perpetrators to prove that something was done for them to be "led" to believe an act was consensual.

Jacob Zuma being acquitted of the rape charges does not change the meaning of consent which the judicial system had failed to recognize from the beginning. This judgment, in my view, only serves to perpetuate misconceptions and disinformation about the complex and varied elements of sexual abuse, many of which will be explored in greater detail in the subsequent parts of this discussion.