In what might have to become a regular slot on this Blog, I have decided to assist the ANC bigwigs in understanding the finer points of our Constitution. God knows, they really need some lessons. Lesson number one is about freedom of expression (article 16) and freedom of assembly (article 17), both rights enshrined in our Bill of Rights.
So listen up, Comrades. Please, I ask nicely. Concentrate. Try to empty your minds (if any) of all the revolutionary rhetoric, of the thoughts of Mercedes Benzes and fat government contracts, of the burning effigies of Thabo Mbeki, of the words and wisdom of comrade Kortbroek Malema, and try to learn something new for a change. (Julius, I know you never really concentrated during your schooling years and never learnt much, but it is never too late to learn something useful, so listen up as well.)
Today’s lesson is necessitated by the hilarious comments made by comrades Jessie Duarte and Gwede Mantashe. Duarte is quoted in The Cape Argus yesterday as saying that the ANC could not be accused of political intolerance because it was opposition parties like COPE who used “inflammatory language” against the ANC. These people had persistently been “very verbal” against the ANC. Ms Duarte furthermore said (with a straight face, I kid you not) that shouting slogans and burning ANC T-shirts and posters at COPE meetings was “not acceptable”.
Comrade Matashe went a step further, saying that the ANC could not be blamed because its supporters disrupted seven of COPE’s meetings because “when COPE sent text messages to ANC members and supporters inviting them, our members attended the meeting. When they [ANC supporters] don’t like the COPE message, Cope must not blame the ANC”.
Where to start? Well, section 16 of the South African Constitution is perhaps a good place. Section 16 guarantees for everyone (and by everyone, comrades, I mean also non-ANC members and even people who think Jacob Zuma is a right-wing, sexist, crook) the right to freedom of expression, which includes the right to receive and impart information. This right is not absolute and does not extend to incitement of imminent violence or hate speech (comrade Malema, are you still concentrating?). It DOES extend to vigorous criticism of other people and any organisation – even an organisation like the ANC whose Dear Leader thinks God has anointed it to rule South Africa until Jesus comes.
Expression also includes non-verbal kinds of expression, such as holding up of placards or the burning of placards or even T-shirts. That is why, comrade Duarte, Jacob Zuma’s supporters were not arrested or disciplined after they burnt T-shirts, imprinted with the face of then president Thabo Mbeki, outside the courtroom where your Dear Leader made one of his many court appearances before giving his little Foxtrot show outside the court.
So, dear comrade Jessie, when you say that the burning of ANC T-shirts and posters and the shouting of slogans are not acceptable, you are saying that it was unacceptable to criticise the ANC and that the right to freedom of expression enshrined in the Constitution should not apply to those who dare to criticise your God-like organisation. But the ANC is not God – it is just another political party whose members and leaders have their grubby little fingers in the public purse (and sometimes up the skirts of South Africa’s women).
This might come as a surprise to you, but we all have the right to shout as many slogans as we want and we can denounce the ANC in robust and colourful language – as long as we do not incite violence against our opponents. Of course, shouting nasty slogans might not be politically astute because voters might be put off by nasty and ignorant comments (Julius, you still there?), but as long as comments do not create the climate in which your supporters think it acceptable to break up meetings and attack opponents, the speech can be highly robust.
What you are saying, comrade Jessie, is that criticism of the ANC should be censored because the ANC is really above criticism and its supporters have the right not to hear any criticism of their party. This is deeply undemocratic and, quite frankly, shockingly close to facism. It’s a disappointment that such ignorant and dangerous comments are coming from the spokesperson of a party who has fought for and still claims to believe in democracy.
You are undermining respect for the Bill of Rights and you are really telling your supporters that they need not respect the human rights of others. Every South African has the right to burn ANC posters, ANC membership cards, and ANC T-shirts, to express their disgust with your organisation and its patriarchal, sexist, right-wing leader. South Africans even have a right to shout slogans making fun of the ANC and its leaders and may even ridicule your Dear Leader by, for example, asking whether he needs glasses or is suffering from Alzheimer, because he can never seem to find that bloody Umshini Wam of his. (Look into your pants Comrade Leader, maybe you have hidden it down there somewhere.)
ANC members conversely have the right to burn T-shirts with the face of Thabo Mbeki on it as well. They can also shouts slogans against COPE or the DA, against Helen Silly and Slippery Sam. They have every right to say the leaders of the opposition parties are opportunist in search of positions and government contracts, that they are not to be trusted, that they will sell out the poor. This, comrades, is called freedom of expression in a constitutional democracy. You should try it some time. It’s fun.
(None of us, I must hasten to add – because I fear you might get carried away with this burning thing – have the right to burn other people or their belongings, so don’t even think about encouraging your members to do that.)
Turning now to dear comrade Mantashe: it is with sadness that I have to remind you that article 17 of our Bill of Rights states that everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket. This means – let me spell it out for you dear comrade Mantashe – that no one (not even ANC members who think they are more important than the Constitution) has the right to stop other groups from assembling and holding meetings where they can freely express their views, just because the ANC members do not like what someone is saying.
Our Constitution requires us to be tolerant of other people and their ideas and never to take action to prevent them from gathering and from expressing their ideas – even if these ideas are not popular or not well liked. So for you to say that the ANC cannot be blamed when their supporters disrupt COPE meetings because COPE said things the ANC members did not like, you are admitting that you believe ANC members do not have to respect the constitutional rights of others and have a right to stop others from criticising the ANC. This places the ANC above the Constitution, which is something the Nazi’s also did – its called facism.
Comrade Matashe, then you have the bloody gall to say that COPE is to blame because they said things the ANC members did not like. This is called blaming the victim. It is a bit like blaming a women for her own rape because she was wearing a short skirt. (Come to think of it, your Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got, so maybe my example is not going to assist too much to help you understand my point.)
So, dear comrades, please. I beg you. I beseech you. Take a deep breath. Open up your constitutions and read sections 16 and 17 again. Make sure you understand that we live in a constitutional democracy in which we can shout slogans and burn T-shirts and criticise each other and where no one has the right to stop us from doing that just because they do not like hearing the truth. Make sure to understand that we do not live in a facist state where the party is more important than people and their rights.
The ANC is not above the law or the Constitution – even though your Dear Leader has said as much. We all fought for our Constitution and for our democracy. Why are you besmirching it like this? Have you no shame? Soos ons in Afrikaans sal se: Sies!
well said. these people seem to have forgotten how many pass books were burnt ‘illegally’, how many ‘illegal’ gatherings were held, how many ‘illegal’ marches took place, how many speeches given, how many pamphlets and books written against the apartheid government – all to get us where we are today: living in a free democracy.
Prof, don’t you know that “Sies”, like “Siestog” is unparliamentary and might just get you ejected (like what happened to Juanita Terblanche in the NCOP yesterday…)
Awesome post, Prof!! Certainly no holds barred.
Perhaps your next one should be on section 15, specifically s 15(2)(c) given that Zuma is now trying enforce prayer at school. Mind you, it appears that the ANC are on a march to trample every conceivable right enshrined in the Constitution.
The hypocrisy is mind-boggling, especially when one recalls that JZ was the erstwhile head of the moral regeneration project until fairly recently.
You never stop, Prof, do you?I agree completely with your analysis! If only you can try and be consistent on your analysis throughout the year! Eish, this hypocrisy maak my naar, jy weet!
Malema: Comrade Prof, thank you very much for your revolutionary lesson! I really did not know that burning things is part of peaceful protest…comrades we need to make many t-shirts and placards with Harms JA’s face sothat when he makes that counter-revolutionary judgment we can burn him..no I mean to say- t-shirts and placards!
Viva comrade Prof!!!
Prof – in silence: Ohhh! what have I done!!
Ai. No comment.
Hey Prof
What a good one. i am a journalist and a language activists as well as a member of the ANC. The way my fellow comrades carry on flabagasts me. can yo0u please analyse the move by Phosa non the Mpshe
Thank you for a very clever analysis Prof. but I am confused whether you are still dealing with social and political issues from the perspective of the Constitutional law or the ANC from the perspective of politics(which is of course a leading party and should be faced with criticism). You seem to be more focused on poor Zuma these days and you might just change the name of your blog ANC-tionally Speaking before we know it.
I enjoy the Prof in this mood.
It’s a shame that the people that should read this, never will!
I just read this http://www.mg.co.za/article/2008-11-21-anc-lodges-complaint-over-mpshe
I do not understand why the ANC (or Zuma) are so afraid of Zuma standing trail?? Actually I perfectly understand, he’s afraid of a guilty verdict. Zuma has gone on and on and on and on about his rights claiming he wants his “day in court” and yet the ANC (by proxy Zuma) is doing EVERYTHING possible not to “have his day in court”
This new fresh attack on the NPA is just another tactic the Zuma-ANC (aren’t they the same rotten thing?) is trying to prevent his “day in court” (the reason why I continue to use the phrase “day in court” in inverted commas is because he clearly has no clue what it means). It seems he is happy for court cases that can delay (or dismiss) his charges but anything other than actually proving his guilt OR innocence?
What a farce (party sal sê ‘n donderse grap) the ANC has become, once an internationally respected liberation movement.
T @ prof we are not surprised by the tone of your article. The times has arrived again to hear all sorts of characters speaking about our movement. Its elections next year. Devos has started his caimpagn for the DA and COPE by discrediting the ANC. Pity prof you hold only one single vote only one. So excersice your rights to your satisfaction but leave the anc alone. By the way you must thank us because you wouldn’t be enjoying this if we were still under your brothers the aparthied goverment.
We will never leave the ANC.
T, my brother. I am tankful for the (old) ANC and all the people inside and outside the ANC who have fought for our wonderful democracy. But democracy is about a contestation of ideas and principles. I note you did not take issue in any way with my (rather playful) analysis. So you agree Mantashe and Duarte were wrong to say it is acceptable for ANC members to break up opposition meetings merely because opposition supporters shouted slogans and burnt posters? If you are not in agreement, please say why. Then we can have a great (DEMOCRATIC!!!!) – argument about it. I love intellectual or just plain old political arguments – especially if they deal with important issues like human rights and democracy….. But if one has no arguments one tries to discredit the person making the good argument. I await your considered and reasoned response. (Jokes allowed….)
@ T
I put it to you that the biggest discreditation of the ANC has come from the ANC itself…if I listed all the incidents that prove my point it’d take a whole new server, but Zuma, Mbeki, Malema, Mabula, Mantashe et al are definitely not doing the ANC any favours…it’s not a campaign FOR anybody in particular, it’s not even a campaign…it’s merely observations based on facts which are scrutinised through the magnifying glass of reason and laws like the Constitution. You can argue with emotional outbursts, but if it looks like a duck and quacks like a duck…then it’s a duck.
Think about it.
Pierre, why are you getting desperate?
ROCKED BRO!!!!!!!!!!!!!!!!!!!!!!!
TOTALLY AGREE WITH YOU
cheers cheers
SHUTTLE!!!!!! WAG!!!!!!!!!!!!!!!
Please could you extend your explanation of constitutional law to s 9(3), s 12(2) and s15(2); because I am afraid that our President-in-waiting hasn’t got a clue about them either, judging by his recent campaign-trail speeches. Can’t the ANC afford speech writers for the man? (Haven’t they watched West Wing?!)
Zuma’s comments on ‘gulag’ schools for teenage mothers and enforced school prayers are unashamedly discriminatory, and downright worrying. I see other signs of Russia everywhere – from the planned politburo of the super-cabinet, right down to attacks by members on the opposition. What other example do they have to follow?
Setumo:
Because the ANC does not understand the constitution!
Pierre, this is a very fine essay. But I have a question for you: What makes you think that those to whom you address your lecture care for one moment about the Constitution’s injunctions?
I find it genuinely touching that you invoke “Our” Constitution. It betokens the naive (but noble), liberal fantasy that a text is capable of constructing a political community that cuts across the ideological, ethnic and cultural differences bequeathed by history.
(Yes, I know you profess to despise “liberals.” But, as they say in Alabama, “denial ain’t just a river in Egypt.”)
Michael, I can give you the boilerplate answer that progressive constitutionalists in the ANC like Kader Asmal would probably give, namely that the ANC was instrumental in drafting “our” Constitution and that this text represents the noble consensus reached by our leaders about how we want to be governed. While not every single person agrees with everything in the Constitution, it does represent an ideal we are striving towards and that we as a nation has agreed upon.
Or I can concede that I am referring to “our” Constitution in an rhetorical attempt to help bring that consensus into being. You call it denial. I call it optimism…. Let’s call the whole thing off?
Pierre, as to the boilerplate: Could it be that Prof. Asmal has always represented something of an outlying position within the ANC’s broad church. (Anyway, why should the masses be bound by a constitution that was, after all, negotiated under colonial duress : ”We give you give you country back if you guarantee our rights in perpetuity.”)
As for your rhetorically-imagined community: It is precisely the task of critical intervention to say when the gap between rhetoric and reality has become too wide to be discursively negotiated. Yes, I know, “reality” itself a product of our talk about the world. But only partially so. Otherwise, how could we distinguish between Bush’s “faith-based” discourse from its “reality- based” critics?
Well prof have not much problem with your article. I also believe that anyone who needs education on “our” constitution must get it. But I should put to you, that the ANC is the least of those people or organisations. I say this with the proud conviction that since democracy we have protected the constitution. All our programs in goverment have been constitutionally correct ( exerpt for those silly decisions by TM & lekota) The concourt can attest to this. Hell we drafted the constitution its what we fought for. Yes it is part of the broader struggle to wards the NDR.
What Mantashe and Daurte where saying I believe is distorted by you. I agree with them the ANC should not be blamed for political intolerance, when parties like COPE burn the ANC flag. Is this not a provocative action prof, how should ordinary anc members on the ground react, when they see their flag a symboitic item of their struggle go in flame? Can such provocative action in a political environment such like elections be controlled? I believe that the right of COPE to assemble and demonstrate should not infrige on the same for the ANC.
By the way Cope is not the first opposition to ANC nor are they the first dissidents. Now why do they find it proper to burn ANC flag. Would it be proper if the ANC does same for them, all over de country. Your example of TM’s t-shirt burn is irrelevant. That was an individual not the organisation.
So prof I submitt my disagreement with your article notwistanding my respect for “our” constitution.
AMANDLA!!!
I am yet to read a convincing argument against your article Prof. As far as I am concerned, all the above posts have not moved your article by even an inch!
Thank you for the way you have explained sections of the Bill of Rights and the humourous way in which you have explained it. Without people like you, our Constitution would be a dull legal document which is relevant only to those who practise law or are involved in legal writing and which is never appllicable to ordinary citizens. Keep up the good work!
I must admit I’m more than a little bemused on the copious amounts of vitriol heaped onto poor Jacob Zuma.
What I don’t exactly get is how “constitutional” it was for Mbeki going for his third term, in fact having to amend the constitution to do so, and for Mbeki to have abused the NPA to eliminate Zuma, very much in the same way he abused the ministry of police by accusing Ramaphosa, Phosa and Sexwale of a plot against him just a few years ago. Then there was the thorny little issue of Selebi and the NPA yet again ?
All of a sudden we have a new minister of health, Robert Mcbride has been given the boot, for the very first time we are putting real pressure on Zimbabwe and the new leader of the ANC is openly talking about solutions to the crime issue – yet the Lekota’s, Shilowa’s and the Pierre de Vosses of our world – (most of them concentrated on the Internet mind you) are standing up for Mbeki and are remaining quiet on all those issues ?
Dear ozoneblue,
Criticizing Zuma does not mean heaping praises for Mbeki. Get that thing in your mind. A bad Mbeki does not a good Zuma makes, and vice versa.
Can’t you refute the allegations about Zuma without dragging Mbeki into it? Mbeki is history don’t you know? Zuma wants to be the future President of our country. The whole world is watching him closely; and believe you me the focus of the world has shifted from Mbeki to ‘poor Zuma’.
Quite honestly, the thought of having a president who is referred to as ‘poor Zuma’ frightens me.
Ja, nee. Sies! Also, to comrades Julius, Duarte and Mantashe: Wagafa wena!
“Facism” – the prejudice that some faces are superior to others.
“Denial ain’t just a river in Egypt”. They say that in Alabama? I thought they said that only in Missouri.
You really are a racist prof, if you know the constitution so much why not rather stick to offering insight rather than general opinions cause your independence as a political comentator is seriously compromised, you have a personal vendetta with the ANC which is not good for you or this country. If you (the media) keep shifting the focus of the ANC leaders from their stated core duties they are losing time in discussing development for us the ppl who never got free education from the apartheid gov. Consider joining COPE or form a white racist party of your own, we want all against the ANC in cope so as to just throw 1 good punch in next years election (ever heard of a 3 thirds majority, next year). ANC will rule till jesus comes believe that.
Clara, no, there is an obscure taboo against stating the blindingly obvious in Missouri. So, they only say it is Alabama, though not very often even there these days.
With regard to the whole “burning of flags and symbols” thing: is burning an effigy allowable by the constitution? Or is it perhaps a very unsubtle hint as to what the burners would do to the person represented, should they get their asbestos-clad hands on him/her?
It would seem mildly inflammatory and while not hate-speech as such, might be construed as an incitement to violence?
Mbusi // Nov 24, 2008 at 12:08 am
“You really are a racist prof,….”
Mbusi:
You really do not know what a racist is!!
Prof – Hilarious!! – “outside the courtroom where your Dear Leader made one of his many court appearances before given (sic) his little Foxtrot show outside the court.”
Oh, I would pay to see Jacob Zuma participating on Srictly-come-Dancing, dancing the Foxtrot on “Awuleth Umshini wami” in his traditional attire!
Mbusi, thanks for the really well argued and well reasoned principled response to my criticism of comrade Mantashe and Duarte. You really know how to engage with the substance of the argument. Well done!
We urge all black lawyers and litigants (in all matters) who may appear before “judge” Lewis to request for her recusal until she steps down as a judge.
She’s such a bloody racist.
With this approach we will be doing ourselves a huge deal
Prof, Mouse et al, what is the effect of granting leave to appeal in the context of a criminal trial? I know that in a civil matter it has the effect of staying the implementation of the Order. In the context of Nicholson’s judgment: given that the indictment / prosecution was declared to be unlawful and invalid but leave to appeal granted – what is the status of the indictment now? The long and short of it – is Zuma still the accused as we speak??
Lovely stuff and the usual buffoonery from the Zumbies in response.
Lindelani, are you really a lawyer….??
Oscar,
indeed
why?
“Mbusi, thanks for the really well argued and well reasoned principled response to my criticism of comrade Mantashe and Duarte. You really know how to engage with the substance of the argument. Well done!’
Congratulations Pierre. I have also noted that you are very selective about which comments you decide to publish and which ones you choose to ignore.
OZONEBLUE
Thanks baba, my point exactly.
I have always questioned his objectivity
Ozoneblue and Lindelani, all comments posted on this Blog are published. I do not censor any comments. Given my limited time I obviously do not respond to all comments as I actually have a real job I have to attend to as well. The objectivity canard is trotted out by people who do not like the opinions and analysis expressed here but do not have any counter arguments to present. If you think I am not “objective” (whatever that may mean), it would be helpful if you guys engage constructively and in a reasoned and logical way with said opinions and analysis and show how I get it wrong, based not on your emotions and blind belief but on facts, logic, legal principles and the like. Why don’t you guys argue with me about the substance of what I have to say and stop making personal attacks devoid of any substance so that we can have a real democratic discussion? We might all learn something from one another then. Really, don’t be shy or afraid. Give it a shot. Is that not what true democrats would do? On the other hand, absurd ad hominem attacks devoid of humour, logic, reason or any other discernible merit ask to be mocked and ridiculed and sometimes I cannot resist the temptation to oblige.
Pierre
I posted some comments here last night. Same on this post on thoughtleader and they got wiped – could be “technical problem” , I don’t know but if so I humbly apologize.
“Given my limited time I obviously do not respond to all comments as I actually have a real job I have to attend to as well.”
I appreciate that. I have question for you though – say for example the director of the NPA made a public announcement at your university saying that they have ‘prima facie” evidence that you are a rapist but they don’t think they can win the case against you because they do not have enough evidence – they are therefore not going to prosecute you. Lets say you did in fact have consensual sex with a women who turned vindictive because you are not committed and then accused you of rape. Lets just imagine for a second henceforth everybody alludes to you as the rapist and the “sexist pig” and you lose your “real job” because of that: Constitutionally speaking where do you stand ?
I think we should change its name from Constitutionally Speaking to Anti-Zuma Speaking.
Yourself Pierre and your other champions of democracy continue to call Zuma a rapist besides the court’s ruling that he’s innocent – why is that?
Isn’t that supposed to be construed as contempt of court? Surely you also have no respect of the rule of law.
I am not suprised! it’s correct that most of the so-called white professors have limited intellectual capacity.
I really don’t take you serious
Lindelani. May I suggest an eye test or a brain transplant. Take a deep breath. Put on your glasses. Read the post again. Then you may be able to see that I have never, ever, ever, ever said that JZ is a rapist. Where do you get that stuff brother? Please quote relevant passages to substantiate this slanderous allegations. If not, please think next time before you embarrass yourself with such an ignorant post. You are a bit like Sarah Palin – you just make stuff up with no regard for the facts. Please don’t do that. Also, I am still waiting for an honest argument about the proven facts about JZ that makes him suitable for public office. So far none of his defenders have defended him by justifiying his statements or his actions. Why did he take all that money from that crook Shaik? Why did he do favours for that crook Shaik? Why did he have sex with that young girl and then take a shower to prevent himself from getting HIV? Why did he say that women and their children must be forcibly removed from each other? because these actions and statements are not defensible by any relatively progressive person, Mr Zuma’s defenders have only attacked me for pointing out these blindingly obvious defects in mr Zuma’s character and his political viewpoints. Which means they have no defense of JZ. Just irrational emotions. It means what JZ has done and said is indefensible. Unless one is a right wing, homophobic, sexist bigot of course. Then one would love him very much.
Pierre,
Whew! You gave me quite a shock there! I hope you are referring to my namesake, McCain’s ex running mate, and not me, the reader of your blog.
I try not to make things up, although as has been pointed out to me before, I am often mistaken.
If he did all these things why is he not in jail then?
Lindelani,
It should be obvious even to you that Zuma is not in jail because he has been avoiding his day in court.
Lindelani, in South Africa it is not a crime to hold sexist views of women – otherwise half of SA’s men would be in jail. Also, no court has yet found that Mr Zuma has had the INTENTION to be bribed and to be corrupt, which is required for a person to be found guilty of a CRIME. A court has found that Zuma took the money and did the favours for that crook and old friend Shaik, so it has been found that Zuma did these things: It is not a matter of IF he did them. The only question for the criminal law is with what intention he did it. Once he gets his day in court, a court will have to decide on his criminal guilt. Meanwhile, ordinary citizens may well ask whether it is a good idea to have a President who holds such backward views of women and who has displayed such spectacularly bad judgment and lack of ethical standards regarding the Shaik matter. Others like yourself may not care about having a wise or ethically sound President (that is democracy for you – Americans voted twice for George W Bush, so the electorate does not always select the ethically sounds and progressive people as their leaders). Ce la vie.
I find it odd that people are arguing against the dissection of Jacob Zuma as a politician, leader, citizen, etc. and an enquiry into whether he could be a good president of the country.
I strongly believe that we have a right to enquire into each and every person who is holding any public post or who is responsible for any section of the public. This enquiry is generally intense and extremely important and necessary in case of politicians in general.
In the case of Jacob Zuma, not only is he a politician who holds a public office but he is also a very strong candidate for the President of this country. This makes the inquiry into him necessarily more robust. The fact that so many people are blindly following this man who is definately not a “proper and fit person” to be the President of this country is beyond my understanding.
Prof Pierre has merely pointed out his reasons why he says Jacob Zuma is not a ‘proper and fit person’ to be the President of this country and he has, as a firm believer in democratic principles, invited submissions from anyone who thinks otherwise. So far we have witnessed people beating about/around the bush and not telling us why he should be elected President next year. Instead of declaring the reasons why they support Zuma, they point out to the lack of objectivity of the person providing the reasons why Zuma is not fit to be the President.
This propensity of (un)skilfully running away from the substance of the arguments levelled against Jacob Zuma being a fit and proper person to be President is not doing any good but it merely proves that there is no reason of substance why there is so much support for a Zuma Presidency. This is indeed very scary when you consider that some of the staunch Zuma supporters are holders of various degrees including being admitted as practitioners into the honourable profession (legal profession).
I am yet to meet someone who will convince me as to why South Africa needs a Jacob Zuma Presidency regardless of the strong substantive arguments against such…
In fact, let me drop that standard as it may not be attainable; I am yet to meet someone who will provide, as Prof Pierre has done on numerous occasions, substantive and objective reasons why at this day and age South Africa needs a Jacob Zuma Presidency…
Tony in virginia,
But he went to go and was acquited
on the fraud matter, the court has lambasted his unlawful-unprocudural prosecution
what more do you want?
H’s never avoided any day in court-surely you not a lawyer
he’s exhuasting all the lawful-legal remedies available to him
Pierre De Vos,
LET ME CLARIFY THIS ONCE AND FOR ALL.
THE MAJORITY OF THE PEOPLE ARE REALLY NOT SAYING ZUMA IS INNOCENT.
WHAT PISSED PEOPLE THE MOST AND MADE ZUMA TO GET SO MUCH SUPPORT IS:
PEOPLE KNOW THAT MOST POLITICIANS (INCLUDING THABO MBEKI) LACK ETHICAL STANDARDS AND ARE REALLY NOT CLEAN AND INNOCENT- THEY HAVE AT SOME POINT DONE ILLEGAL DEALINGS
SO WHAT CROSSES THE MAJORITY OF OUR PEOPLE IS WHY ONLY CHOOSE ZUMA AS SOMEONE WHO LACKS ETHICAL STANDARDS?
THIS IS THE QUESTION THAT CHANGED THE WHOLE POLITICAL SAGA IN OUR S.A POLITICS THUS GAINING ZUMA MORE SUPPORT
HOPE YOU NOW SEE OUR CONCERN THAT IS WHY YOUR THABO MBEKI ENDED UP IN HOT WATER
@ Lindelani,
Firstly, Zuma was not acquitted. It was found that the procedure was unlawful and he may still be charged. You talk about Tony in Virginia not being a lawyer. Get your facts straight.
Secondly, despite your attempt to tar all politicians with the same brush, some are ethical and have not been involved in illegal dealings. Furthermore, the focus is on Zuma because he is in line to be our next President. That makes his lack of ethics and questionable moral character of the UTMOST importance to the people of this country.
And finally, you yourself have said on this blog that Zuma is innocent. So, once again, I implore you to get your facts straight before you start shouting at everyone else.
Sne,
No one will waist his time trying to convince you
It’s evident that Xhosaz like you don’t need Zuma-Zulu presidency unfortunately we (majority) do
I guess the best way is to convince yourself or join your white forks you admire so much
We doing this for the majority of our black people unfortunately it’s unfortunate that within blacks there are Xhosas (black-whites)
That’s why whites benefited so much under the previous Xhosa (mbeki) government
My advise is Xhosaz and whites should join forces and fight us- good luck see you in the street!
pierre
I see you keep on avoiding the issues around the wanton abuse of Zuma’s constitutional rights. And that on your very own blogged ironically named “constitutionally speaking” LOL
“A court has found that Zuma took the money and did the favours for that crook and old friend Shaik, so it has been found that Zuma did these things: It is not a matter of IF he did them.”
What court made that founding ? A link to the applicable judgment to substantiate that statement would be much appreciated. Thank you.
Further – I do not count having consensual sex with a younger women as an “sexist” act, but then I suppose our militant feminists would also describe Woody Allen as “sexist pig”. However, the most bizarre twisting of the true meaning of sexism and its implications for women in South Africa is in misconstruing Zuma’s statements about encouraging pregnant young girls to complete their education. No doubt, in your twisted logic, instead of having them educated and able to be independent and provide for themselves you would rather have them bare foot and pregnant slaving in your kitchen for the rest of their lives ?
Samantha,
Zuma being acquited i am referring to the rape case.
and you “champions of democracy” still label him a rapist
so i don’t know who to get his facts straight
Ozonablue,
Pierre must really send us the judgement -which court?
did Zuma appeal the judgement? is this guy a professor?
what is the judgement?
please send us the judgement “professor”
Lindelani
I am not a lawyer. You are right (the first time this year). But here is what I know.
The judge did not find that sex between old man Zuma and the young girl was consensual. He ruled in favour of Zuma because there was NOT ENOUGH evidence according to him to rule otherwise. Remember that the onus of proof lies with the one who affirms and failure to do so in the eyes and ears of the court, the benefit of doubt goes to the defendant.
An American court ruled in favour of OJ Simpson. He was acquitted of gruesome double murder. But in a subsequent civil case, the court ruled that OJ Simpson was responsible for the murders of his ex-wife and her friend and OJ was required to pay for damages caused his actions.
Two courts, same settings (except that one was a criminal case, the other a civil case), different outcomes. OJ is still presumed innocent of murdering his wife and her friend; yet liable for the deaths of his ex-wife and her friend. Go figure.
The court acquitted Zuma of rape; yet the young girl is adamant that Zuma raped her. I am no judge, I believe the young woman. (Even the judge did not pronounce that the sex between Zuma and the young woman was consensual).
Even though I believe the young woman, I still have not called Zuma a rapist. I don’t think anybody in this forum did. That is a figment of your imagination.
Regarding corruption, the Shaik case is available if your search the internet. As a lawyer, you can easily discern (as I, a layman in law did) that the evidence before the court points to a corrupt and very weak Zuma who have difficulties managing his finances.
The judgement is readily available, except in the FriendsOfJz website, for some ‘strange’ reason given that they have kept other judgements – including Hlophe’s – that seem favourable to Zuma.
As for the other issues, I wish I could be as eloquent as Sne (above).
ps. Lindelani writes: “…H’s never avoided any day in court-surely you not a lawyer. he’s exhuasting all the lawful-legal remedies available to him ..”
I ask you, why is he ‘exhuasting all the lawful-legal remedies available to him’? Why not go to court and get remedy there?
Tony in Virginia,
I believe you not a lawyer
There judge never ruled that Zuma is guilty of any corruption.
Surely you don’t know the difference between a judgement and a comment
Go do your research in difference between the two, then you can refer me to your so-called judgement
Zuma is using all remedies available to him because the manner in which he’s been taken to court is unlawful. He cannot go to court while he’s brought to court unlawfully.
They must procedurally do everything correct before calling for his day in court
Tony
“The judge did not find that sex between old man Zuma and the young girl was consensual.”
You see it is difficult to argue with people who don’t even know the basic facts.
“Judge Van der Merwe had told the court about November 2 last year: “I find that consensual sex took place between the complainant and the accused in the main bedroom.”"
http://www.news24.com/News24/South_Africa/Zuma/0,,2-7-1840_1929281,00.html
“The judge also criticised the complainant, saying she had not been a credible witness and citing defence witnesses who said she had previously brought false rape charges against them.”
http://www.independent.co.uk/news/world/africa/ancs-zuma-cleared-of-rape-charge-but-rebuked-by-judge-477374.html
But then I suspect you are not really interested in the truth.
Prof!
I read this article and my response is simply as follows,
GREAT PRESENTATION OF ANALYSIS BUT DEVOID OF SENTIMENTS OR SUBSTANCE.
As for Tony with his question and i quote ”I ask you, why is he ‘exhuasting all the lawful-legal remedies available to him’? Why not go to court and get remedy there?
Why this total ignorance of rights as entrenched in our constitution? what is wrong with him exploring legal remedies that are due to him? Why prescribe to him how he should approach his case to arrive at a destined legal solution?
>> Why this total ignorance of rights as entrenched in our constitution? what is wrong with him exploring legal remedies that are due to him? Why prescribe to him how he should approach his case to arrive at a destined legal solution?
Because based on his recent utterances (eg no bail for people accused of serious crimes) it seems that he wishes to deny the same constitutional freedoms to his fellow citizens.
Dear ozoneblue and others
Here’s what appears on page 174 of Judge W.J. van der Merwe’s judgment (you may view this on the FriendsOfJZ’s website):
“… In my judgment the state has not proved the accused’s guilt beyond reasonable doubt. The accused is found not guilty and is discharged …”
This is the difference between reading articles in the media and the actual statement that was signed by the judge. That is where I got my facts from because I am interested in the truth.
You are right; it is difficult to argue with a person who does not even know the basic facts.
Gwen!
” Because based on his recent utterances (eg no bail for people accused of serious crimes) it seems that he wishes to deny the same constitutional freedoms to his fellow citizens”
Is he not entitled to his opinion. Why am asking that is precisely because there is no legislation at this moment in tandem with his statements. unfortunately for you, we have legislations prescribing procedures he is following in pursuit for his freedom.
We certainly can not dwell on an individual beliefs on a specific issues and opinions. What matters now is he has rights like any other citizen and should not be questioned about why he is enjoying same. I find it naive to judge a person on his personal beliefs
Tony
No you are clearly not interested in the truth because then you would have posted a direct link to the judgment /www.friendsofjz.co.za/documents/Van%20der%20Merwe%20judgement.pdf
so that everyone could read pages 153 to 174 with a pretty detailed account of what happened and a factual analyses of why the judge accepted Zuma’s version as quoted in the press and on page 159.
Dear Ozoneblue
I don’t understand why you say I am not interested in the truth when I am the one who told you about that document and where to find it.
There is nowhere in those pages where the judge says he finds that a consensual sex has taken place.
In those pages the judge is related what the witnesses say happened that night. Yes, he may have used this information (subjective) to arrive at the decision.
The only place where there is an actual pronouncement of the finding by the judge is page 174.
The bottom line is that Zuma was acquitted and I respect that; that is why even if I believe that young woman, I will not call uMsholozi a rapist.
mel!
>>We certainly can not dwell on an individual beliefs on a specific issues and opinions. What matters now is he has rights like any other citizen and should not be questioned about why he is enjoying same. I find it naive to judge a person on his personal beliefs
Why should we not dwell on the personal beliefs of an individual when that person is promoting those beliefs as the policies he intends to implement as future president? Don’t you find it hypocritical that JZ should rely so heavily on the selfsame rights that he seems to find objectionable? Perhaps he finds them objectionable because he knows from personal experience how the guilty may manipulate them?
A Simple Dispute of Fact:-
Tony in Virginia // Nov 25, 2008 at 2:18 pm “. . .The judge did not find that sex between old man Zuma and the young girl was consensual”. [I cannot forbear to note that the complainant, at the ripe age of 31, had long before left all grades of girlhood behind her; need it be said that it is at once patronising, sexist and false to write in this way?].
At 3pm Ozoneblue disputed (by reference to two media reports) Tony’s assertion as to the absence of any such finding of consent by the judge – quoting from one of the reports what purported to be part of the judgment.
Tony responded at 4:51pm quoting the final remarks made by the learned judge dismissing the State’s case (and subsequent to his making of the pertinent orders) – all as they appear on p.174 of his judgment (itself posted on the friendsofjz website).
At 9:20pm Ozoneblue gave the full link to the judgment and invited curious readers to peruse pp. 153-174, including in particular at p.159.
Tony’s riposte at 10:44pm on 25 November repeated his previous assertion in these terms:-
“There is nowhere in those pages where the judge says he finds that a [sic] consensual sex has taken place . . . The only place where there is an actual pronouncement of the finding by the judge is page 174.”
As of 11:11am on 26 November, the thread appeared exhausted, leaving Tony the apparent victor in the field.
More than twenty-six hours have now expired since Tony’s second assertion of the absence of any finding of fact by the learned judge as to whether the sex was or was not consensual.
The Facts:-
At p.170 of the judgment (dated 04/04/06) as posted on the friendsofjz website the learned judge concluded as follows:-
“From the aforegoing [sic] it should be clear that I find that consensual sex took place between the complainant and the accused in the main bedroom”
So there we have it. The factual dispute between Tony and Ozoneblue is authoritatively resolved adversely to Tony. An unconditional apology by Tony is now indicated.
What Follows:-
I am unsure why it was left to a neophyte to post this part of the learned judge’s finding, and I have been revolving in my mind what comment I might sub-pend to what I have already written. It is inevitable that by writing more I shall incur the charge of sententiousness, but it seems to me that, as a matter of record and in tribute to the many and varied qualities of this blog, something more is required than merely directing the reader’s attention to what appears on p.170 of the judgment.
At a minimum – especially having regard to the boldness of the protagonists in squabbling as to which of them was more devoted to the cause of truth – something needs to be said as to the unsatisfactory manner in which this dispute of fact has been left hanging on this blog.
The immediate question which arises is whether either Tony or Ozoneblue studied with any care the text which both of them were convinced supported their opposing positions. There is nothing of any relevance on p.159 (to which Ozoneblue pointedly directed the blog’s readership), but Tony’s error was not, for all that, hard to nail.
Since they were the protagonists, the primary obligation was on them to ensure that their dispute of fact was resolved in a clear and definitive way. One of the more creditable features of threads on this blog is the indefatigable way in which weaknesses in various positions are hunted down (or, at least, vigorously harried), rather than listlessly abandoned in mid-chase with half-truths, misconceptions, misunderstandings and errors littering the intellectual landscape.
Where matters of opinion are involved, it is inevitable that there is a large element of zestful yapping and running round and round in circles; but even here some benefit can be gained by the reader in the way of innocent pleasure at the wanton display of folly, vanity, foolishness or obstinacy by those who ought to know better but whose natural restraints are temporarily relaxed by the anonymity of blogging.
All the more, then, is it to be reprobated that a dispute as easily resolved as this one was should have been left for even a day with error triumphant. It may, of course, be that Ozoneblue was otherwise engaged and unable to join battle with Tony in the course of the last twenty-four hours or so. No adverse inference should be drawn from one blogger’s silence in such a case.
On the other hand, the further questions arise whether any other readers of this blog (who had at least persevered with this thread down to the afternoon of 25 November) bothered to read the judgment with an eye to discovering for themselves where the truth lay and, if any did, why they did not care to confide to the rest of this blog’s readership the fruits of their study.
Easily verifiable errors ought not to be left to disfigure a blog which frequently (and often in an exhilarating fashion) offers that inter-play of intellectual engagement on issues directly relevant to our young democracy which is so lamentably absent from the mainstream media.
The single most encouraging aspect of these threads in general is that people occupying vantage points overlooking various cultural divides continue to enter into dialogue with each other with an evident and often passionate desire to communicate what they consider is both obvious and necessary for all to know, but which they (at some level) recognise their counter-parties can neither hear, see nor grasp. In such circumstances, perseverance in an honest and (within the conventions of odium academicum) courteous dialogue is a powerful marker of hope.
None of this, however, is of the slightest value unless there is at all times an unqualified devotion to the truth.
Well that got you started…
Unfortunately due to the nature of blogs and people and the limited time they have, not all facts are always hunted down and not all threads engaged in by all. And most unfortunately not all people are devoted to the truth, but often to what they would like the truth to be, but even more often the truth is just too hard to come by.
Read a scientific debate for example. One rambles numerous “facts” and you are left at the end quite convinced, until you read the rebuttal which disputes facts one by one. But then the counter rebuttal. So even scientists can’t agree on what the “facts” are, or how they should be interpreted. And in spite of the history of revolutions in science, often coming from the fringe, majority rules (whether true or not).
Even “courteous dialogue” is not a value held by all, though many would agree it noble to strive for, not all even agree on that.
Well I hope that muddied the waters for you.
don’tgetmestarted
“All the more, then, is it to be reprobated that a dispute as easily resolved as this one was should have been left for even a day with error triumphant.”
Thanks for sorting it out for us, dontgetmestarted.
But the question remains: what took you so darn long?
z: I am not a positivist, but it was a blatant error as to what had or had not been asserted in a legal judgment. If the readership of this blog share any attributes, readiness to subject judgments and other legal texts to scrutiny (and re-scrutiny) is presumptively quite high up on the list.
sarah: I apologise for taking so long to get back to you on that one but, like you, I’m shy, modest and retiring. I accept it is out of place in the hurly-burly of a blog.
dontgetmestarted
Thanks, I apologise if what I said misrepresented you. I share your view that you should expect some scrutiny of legal texts when referred to. I admit that the case in point was blatant and those of us not in the legal profession (as the debaters in your case in point) would be wise to heed your call, and seek help from the law experts where needed.
z: I took no umbrage
I saw that you and sarah were kindly “piping me aboard”. But you have now, in course of your apology, done what you were previously – and unnecessarily – apologising for:- I did not and do not suggest that the non-legals need to seek help from the legals. ozoneblue gave the link, and it took no legal expertise to read pages 153 to 174 in order to discover if JZ was acquitted on the positive ground the sex had been consensual or (as tony asserted) because lack of consent had not been proven by the State to the requisite standard.
dontgetmestarted
hehe. You misunderstood what I said in the course of my apology.
“would be wise to heed your call, and seek help from the law experts where needed.”
The “,” and the “and” was meant to suggest an addition from my side, though I see how it could be misread.
And the “where needed” was implicitly making it general and not specific to the case in point. So it is completely my suggestion and completely general, hope that clarifies it.
Dear Dontgetmestarted,
I will concede that as part of an oversight, I missed that part when I first read Judge van der Merwe’s judgement. I think it was because that was part of the deliberations leading to his final pronouncement – which is the part that stuck with me.
I engage in debates and discourses for two reasons
• To put my points (which I honestly believe) across to the best of my ability in the hope of convincing the other party.
• Even though I would like win debates (who doesn’t?) my aim (most importantly) is also to learn from others because as a human being I am not infallible.
I will thank you for pointing this out to me and obviously I was wrong. I should have taken the time to re-read the judgement in the light of those two media reports.
But, the most important thing I would like to thank you for is your factual refutation of my allegation. This part has been missing in most debates in fora such as these; instead we have been bombarded with insults and ad hominem attacks.
Having said that, I will concede that I was wrong; and thanks to you, I am wiser now.
Dear Tony, your candid and unequivocal response to my gargantuan intervention is a model of the spirit which should animate the ongoing debates in this blog. In as much as you have directed your remarks to me, I thank you for taking the time to reply in the manner in which you did.
DGMS, well done for your knock-out blow! Tony, congratulations for taking it in the chin like a man!
‘in’ = on
Tony in Virginia – yes you were wrong; and,
dontgetmestarted – yes you were right about what Judge van der Merwe had said during the course of his judgment.
The question, however, is whether Judge van der Merwe was right in saying what he did 9as correctly quoted above). With the greatest of respect towards Judge Van der merwe (I know him well; and, he is a judge while I am a puny regional magistrate) I don’t think so. And, please do not misunderstand me, I am not saying that he was wrong in acquitting Jacob Zuma, I am merely saying that he formulated his judgment incorrectly.
Most probably Judge Van der Merwe, who, I think he will concede, is better schooled in civil than in criminal law (although he has much criminal experience as well) was at the time under the impression that, in order to acquit Jacob Zuma, he has to find, as a matter of “hard fact”, that it has been proven that the sexual intercourse between JZ and the complainant (which is common cause happened) took place with the consent of the complainant. That was not required in a criminal judgment, all that was required was for him to find that there exists enough doubt in his mind (”reasonable doubt”) as to whether the state succeeded in proving that the sexual intercourse took place against the will of the complainant (i.o.w., without her consent). If there was a reasonable possibility of the accused’s version being true (i.e., that she consented – or, more probably, if I read the evidence and the judgment correctly, that he ‘thought’ she consented because of the way she dressed, her sedctiveness, his desires and that she never said “no” during the incident and did not make a positive sign that she was not consenting, even though she might have felt that she was not consenting), then he would have been entitled to the benefit of the doubt, namely, a finding that one of the elements of the crime of rape (i.e., lack of consent or, if that was established, lack of mens rea on the part of the accused) had not been proven.
In a civil case it is different. The successful party’s version has to be accepted as having been more probable than the version of the unsuccessful party, no matter who bears the burden of proof, because in a civil suit, the burden of proof and burden of rebuttal shifts, which does not happen in a criminal matter. In a civil case for damages caused by rape (remember, despite an acquittal or a conviction in a criminal matter, a civil action is still possible and may be instituted regardless of the outcome of the criminal matter – remember OJ Simpson?), it is quite permissible for a court to find that such a fact as “consensual intercourse” has been proven on a balance of probabilities. But it is quite unusual (and, I submit, impermissible) for a criminal court to find, as “hard fact”, that “consensual intercourse” took place. The standard of proof in a criminal case is much too high, and the burden of proof rests on only one party, namely the prosecution, and there is no burden on an accused person to establish certain facts as “hard fact”. If there is evidence against him calling for an answer, and he gives an answer which might reasonably be possible and true, then he is entitled to a finding that the state had not succeeded in proving his guilt and, therefore, his acquittal, but he is not entitled to a finding that his version of the events is in fact true in every respect. Such a finding by a criminal court might rob the complainant of the right to institute civil action for damages suffered as a result of the rape, in a civil court, with a much lower standard of proof than is required in criminal law (proof on a balance of probabilities as opposed to proof beyond reasonable doubt); and, such is not the function (or within the province) of a judge in a criminal matter.
I’m not saying that a civil action would have succeeded in the circumstances, as I do not want to judge a matter which I have not heard; but, remembering that Judge van der Merwe refused to discharge Jacob Zuma directly at the closure of the case of the prosecution (s 174 of the Criminal rocedure Act), he was at that stage of the proceedings not of the opinion that the complainant’s version is so incredibble that it could be rejected as false outright. In facty, by not discharging JZ, he indicated that there exists evidence before the court upon which a reasonable court, acting carefully, might be able to convict JZ if no other plausible evidence was presented. This is why JZ had to testify (and call other witnesses) to avoid the reasonable possibility of a conviction. If one bears that in mind, the question might rightly be asked whether a civil suit might have been successful, and, therefore, Judge van der Merwe was wrong in formulating his judgment in such an unfortunate way.
Besides the point – I think too little attention was during the trial paid (by the state, the defence and the court) to the evidence that, first JZ alone, thereafter through his attorney, he denied that anything (even “consensual sexual intercourse”) had taken place between him and the complainant; but, after the DNA results showed that sexual intercourse did in fact take place (and those results were divulged to the defence as is required after the CC’s judgment in Shabalala), for the very first time during plea (and, then during the rest of the trial), a defence of “consensual sexual intercopurse” was tendered. This issue, as far as I can remember, was not mentioned but, if mentioned, it was merely mentioned in passing by Judge van der Merwe in his judgment, and the reasons for his changing his version was never properly expolred. On that point alone, I think JZ might consider himself most fortunate not to have been convicted. I have encounterd four cases in practice already that an accused person has changed his version from “an alibi” to “consensual sexual intercourse” after the DNA results became known (in other words – where they have tailored a defence in the light of knowing the contents of the case they had to answer, despite Mahomed DP’s finding in Shabalala that such should not be allowed as a reason to allow the state a “blanket priviledge” over the contents of the docket), and which, in the end, led to their being convicted.
Having said all that, I think the matter can be now be debated further without argueing that JZ was acquited of rape and, therefore, that the incident which led to him being charged, should be disregarded when one has to determine whether he is a moral and ethical man, competent to rule a country. What he did according to the evidence (and Judge van der Merwe’s rebuke towards the end of his judgment as to what a “true lover” should act like) , remains immoral and unethical of a man that stature; and, I daresay, there is a big possibility (even a probability) that he was intending to deny that sexual intercourse took place at all, but, for the fact of the DNA evidence, decided to change his tune. That shows that he is a person that cannot be trusted and believed, more or less the same inference that can be drawn from the known facts in the corruption case, and he is not a fit and proper person to run the country.
Bongs – put that in your pipe and smoke it.
Prof, Z, Bongs, Tony, dontgetmestarted and anyone else interested – I see many new posts on other topics, so mine here has been shifted down out of the “recent comments” box – I would however appreciate a more vigorous bout of debate on what I have said above. remember, I don’t say I am right, I am merely advancing my viewpoint for you all to consider. Now I’m off to a healthy dinner and will look in again tomorow. I do however look forward to hearing from you guys on this issue.
Still no takers on this issue? Looks like Khosi is taking up the whole recent comments box with his “galbrakery” because his beloved Thabo Mbeki has been criticised on the HIV thing AGAIN.
Anonymouse // Nov 27, 2008 at 5:26 pm
Well I believe in what he stands for. Crucify me if you want. Giordano Bruno was also crucified.
Khosi – do you believe in what Mbeki stands for, or in what JZ stands for? I ask because you posted the same comment under two different debates.
Anonymouse // Nov 27, 2008 at 5:36 pm
Read what I wrote and what I was responding to; and you will get your answer.
Anonymouse on 27 Nov. @ 3.52pm and again @ 5.06pm has attempted to resuscitate the corpse of JZ’s 2006 rape trial for an ultimately obscure purpose (unless it be, perhaps, a ghoulish delight in controversy for its own sake), but on grounds which, if valid, undermine at various points the credibility of the verdict. I cannot see why the burden of sustaining the verdict should be heaved on to my shoulders, especially since had there been a jury trial the outcome would have been accepted hands down. Nevertheless, I shall do the best I can.
Nombuso elsewhere (“Fit and proper person”, under Nov.27 @1.04pm) also sought a response from me on matters far wider than my narrow original post covered, but what was sought there was an account of the evidence the judge relied on in finding as he did; I do not rise to that bait since we all have access to the judgment which we can read for ourselves.
In what follows, page references are to the pages of the judgment dated 03/04/05 as posted on the friendsofjz website, and “the Act” means the Criminal Procedure Act, Act No. 51 of 1977 (as amended). I have summarized or quoted Anonymouse’s objections as convenient.
Objection 1: The judge got carried away and mistakenly thought he was obliged to make a positive finding of the complainant’s “consent” if JZ was to be acquitted.
Response 1: The learned judge was fully cognisant of the issues of law and fact on which he was called to pronounce. At all relevant stages he held distinctly before him the factual elements which make up the common law crime of rape (see, for example, at p.85), as well as the burden of proof, the proper inferences to be drawn from circumstantial evidence, and how to proceed where there is a direct conflict of fact (pp.140ff.).
The very full discussion of the House of Lords case DPP –v- Morgan (1975) and of the subsequent statutory attempts to defuse it (pp.86ff.) shows he was alert to what constitutes the common law offence of rape. See also his discussion of R –v- Difford (1937) where we find the very phrase which has so fascinates Anonymouse:- “if there is any reasonable possibility of [the accused’s] explanation being true, he is entitled to be acquitted” (p.145).
Objection 2: If the judge found there was a reasonable possibility that the accused’s version was true, he should have stopped at that and acquitted, without entrenching upon the complainant’s “right” to sue for damages in a civil case.
Response 2: There is no such two stage fact-finding process as is implied by this approach. The judge must weigh up all the evidence and then decide where the truth lies. He is not entitled to abandon his weighing of the facts half-way merely because he has reached a liminal basis for acquitting the accused. In this case the judge rejected the complainant’s evidence in toto and accepted the accused’s evidence as a whole (judgment, p.173).
The accused’s evidence went far beyond establishing merely that he was under the impression (for whatever reason, and irrespective of the complainant’s actual state of mind) that the complainant was consenting: see, for example, paragraph 2 of the accused’s statement in terms of s.115 of the Act (p.6).
Objection 3: “ . . . it is quite unusual (and, I submit, impermissible) for a criminal court to find, as ‘hard fact’, that ‘consensual intercourse’ took place”
Response3: Well, which is it? I will not dispute that it is comparatively unusual for a positive finding of consent to be made, but what makes it impermissible for a judge to find “hard facts”? In the instant case the learned judge himself observed that “As far as the rape itself was concerned there are a few very strange and odd features” (p.160), and further on he observed it was “in many respects a unique case with unique features” (p.171).
Objection 4: By rejecting the defence application to have the case dismissed under s. 174 (on the basis there was no case to answer), the judge had conceded there was already before him evidence on which a Court might find JZ guilty.
Response 4: There is no implied or even provisional assessment of the accused’s guilt at this stage. The question is only whether there is a case for him to answer. It is the totality of the evidence given by both sides which has to be weighed up. Assuming the defence leads any credible evidence at all, the state in which the evidence stood at the close of the prosecution’s case (that particular snapshot of how that the evidence then appeared to stand, that is – which the judge summarized at pp.92f) is of no particular relevance at the conclusion of the trial.
Objection 5: “ . . . too little attention was during the trial paid (by the state, the defence and the court) to the evidence that, first JZ alone, thereafter through his attorney, he denied that anything (even ‘consensual sexual intercourse’) had taken place between him and the complainant”.
This would appear to be a reference to the “warning statement” that JZ made on 10 November 2005, just about a week after the alleged rape (p.76).
Response 5: Paragraph 13 of JZ’s statement reads (referring to what transpired between him and the complainant on the night of the alleged rape):- “Later again that evening . . we began to converse and share in each other’s company privately”. JZ testified that he used this form of words on the advice of his lawyers, and for entirely understandable reasons he was naturally embarrassed at disclosing at so early a stage that he had indulged in adulterous sexual congress with the complainant (p.111).
It is untrue to assert (as Anonymouse does) that in that statement JZ “denied that anything . . had taken place between him and the complainant” (my emphasis).
The final two points next following are not objections to the verdict, but limp thunderbolts directed if not actually launched at JZ personally, thereby tenuously bringing the entire post under the thread’s rubric of “fit and proper person”.
Objection7: “What [JZ] did according to the evidence (and Judge van der Merwe’s rebuke towards the end of his judgment as to what a ‘true lover’ should act like), remains immoral and unethical of a man that stature.”
Response 7: No, the learned judge did not stray into the realm of true love. Yes it was adultery – a point that seems to have eluded him in his moralistic peroration (pp.172f., but cf. p.107) where he heaped on the head of JZ one warmish coal and a piece of inert clinker. Only two objections against JZ were made here:- the first was that he had indulged in sex with “someone so many years younger than him, the child of an old comrade . .” (a toothless objection, surely, since the female was aged 31 at the time).
The second was that he had engaged in unprotected sex with a woman he knew to be HIV positive. Since the risk of transmission from female to male is much less than where the roles are reversed, and the State’s own virology expert testified that the risk of a male contracting HIV/AIDS from a single instance of unprotected sex (with a female, presumably) is from 0,03% to 0,1% (p.82), shock and horror shade into something less apocalyptic. Looking only at fairly recent experience in France, the US and the UK, I thought it was fairly well accepted nowadays that sexual immorality is not incompatible with the diligent and even competent conduct of affairs of state. Why “unethical” is thrown into the mix here I cannot pretend to guess.
Objection 8: “I daresay, there is a big possibility (even a probability) that [JZ] was intending to deny that sexual intercourse took place at all, but, for the fact of the DNA evidence, decided to change his tune. That shows that he is a person that cannot be trusted and believed, more or less the same inference that can be drawn from the known facts in the corruption case, and he is not a fit and proper person to run the country.”
Response 8: Leaving aside the fact that this is a somewhat lame coda (“I daresay there is a big possibility” . .“more or less”!!?), this – luckily for me, having regard to the lateness of the hour – is nothing but bluster unworthy of comment. Have a nice night.
There is no objection 6
DGMS, amen to your hard hitting reply! (I will give Mouse a mandatory 8 count if he is going to beat the count at all!) I am very glad that somebody in this blog (I think it’s Tony) really got you started!
I am still wondering where did Mouse get the impression that Zuma initially denied consensual sex. As far as I recall even the media did not allude to that. My recollection is that from the beginning he denied having raped the complainant.
DGMS – Good thorough post. One small quibble about your response 7.
Do you think that when Zuma engaged in unprotected sex with this woman he was aware that a) risk of transmission of HIV is far lower from female to male than the reverse and b) he stood only a 0.1% chance of contracting AIDS from this one night stand?
I have known about AIDS since the 80s and read some of the literature over the years, but wasn’t aware of these facts nor would I be ticking them off in my head as I climbed into bed for a night of passion. Perhaps I am more ignorant than most on this subject – and certainly, it would seem, than Zuma. (Just a quibble, I repeat.)
sarah: The imbalance in rates of transmission female-to-male as compared with male-to-female has been a matter of scientific discussion since the late 1980’s. It was not commented on by the learned judge.
Aggravating factors of male genital ulcers and other STD’s which facilitate the entry of infected body fluids into the male’s system go far to explaining why rates of female-to-male are rather higher in South and East Africa than elsewhere, albeit markedly lower than the rate of transmission in the opposite direction..
The African male’s preference for “dry” sex (which leads many African women to take herbal and other preparations to reduce natural lubrication in the vagina) is a yet further factor which has not managed to encroach on public discourse.
Forensic examination of the complainant, however, disclosed no internal damage beyond an inconsiderable fresh tear of tissue not inconsistent with what might occur if no lubrication had been employed, if intercourse was “passionate”, or if the female had douched herself (pp.68-70, esp. at p.70).
It is routinely objected against JZ that it was precisely the fact that he was in a position to know more about HIV/AIDS (in particular, through his position as head of the National AIDS Council) which makes his “night of passion” peculiarly discreditable to him. His now notorious post-coital shower is taken as proof that he was, in fact, uniquely ignorant about the factors relevant to transmission. I have not read the transcript of his evidence, but the judgment reports – with studied lack of interest in the motives – that JZ washed his hands before starting to massage the complainant (the activity which was the immediate prelude to coition) and showered after completing the sex act (pp.102f.).
Bongs: The Wikipedia article on Jacob_Zuma and the sub-article on the rape trial both assert (without any citation, and – most strangely – without any note that citation is needed) as follows:-
“Even before charges were filed, the news media reported that . . . Zuma had acknowledged a consensual sexual relationship with the woman in question.”
I have not pursued that.
The JZ rape trial is only tangentially relevant to this thread (which concerns Articles 16 and 17 of the Constitution) and my original posting was prompted not so much by the subject-matter of what was in dispute between Tony and ozoneblue (somewhat off-topic,as it happens) as by my concern for the integrity of the blog itself.
However, now that I have got started, I must draw attention to a parenthetical remark made by PdV in the instant article during one of his more sarcastic overflows:-
“our Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got”
As I mentioned in my response to sarah, I have not had the advantage of reading the transcript of the evidence, but the entire tenor of the learned judge’s treatment of it makes it most unlikely that any such thing was said. The language of a woman “deserving what she got” is quintessential rapist-talk.
If PdV is continuing to read posts in this thread – and absent any citation of the relevant place in the transcript of JZ’s evidence – an unconditional withdrawal by him of that remark is indicated.
Bongs – Mice don’t go down as they are already on the floor (usually on all fours) in the nature of things. But that does not mean that I do not have an opinion or response to the responses of dontgetmestarted above. Though I am a mouse, I have the heart of a terrier, and, unless I am convinced that I am wrong, and, subject to my having time, I will always respond until the debate goes away totally.
dontgetmestarted // Nov 28, 2008 at 1:22 am
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Glad to see I got you started at that hour!
Before responding to certain aspects of your above post, though, I need to reiterate that I am not saying (although it can be said to be fairly arguable) that Judge van der Merwe is wrong for having acquitted Zuma on the rape charge. What I am saying is that he formulated his judgment imprudently by stating: “From the aforegoing it should be clear that I find that consensual sex took place between the complainant and the accused in the main bedroom.”
By “From the aforegoing”, the judge wants the reader (listener) to infer from his earlier evaluation of the evidence that his considered opinion is that consensual sex took place. The “aforegoing” however nowhere establishes with any degree of clarity (he said, “it should be clear”) that such is in fact his finding. Nowhere else in his judgment does he directly state that the evidence proved that consensual sex took place. Moreover, nowhere in his judgment does Judge van der Merwe say on what basis he grounds his conviction that consensual sex took place. Is it:
(1) because consensual sex had been proven beyond reasonable doubt?
(2) because consensual sex had been proven on a balance of probabilities?
(3) because, in the court’s opinion, there exists a reasonable possibility of the accused person’s version that consensual sex took place can be true?
None of the former two possibilities would have been the correct approach, because, in a criminal case, an accused person does not bear an onus of any kind. The latter would have been the correct approach, which would have been in line with the authorities he referred to earlier in his judgment as to how a criminal matter should be disposed of. (Viz the quotes of the judge from S v Ntsele; S v Reddy and Others; S v Singh; S v Radebe; R v Difford; etc. earlier in the judgment.) As stated in S v Radebe, “it must be established whether the defence case [in response to the prosecution's case] does not establish a reasonable alternative hypothesis”. Furthermore, nowhere does the law of evidence require of a court to base his conviction that an accused person has in fact committed a crime; or, that he has not. It is not required that it must be proven beyond ALL doubt that an accused person committed, say, rape, before he is convicted of that crime. All that is required is that the prosecution establishes that there is no “reasonable doubt” that the accused had probably committed the crime in question. And, if the state establishes that on a prima facie basis, the court need not find that an accused person had definitely not committed the crime in question. All the court needs to do is to find that, in the language of S v Radebe, there exists a reasonable alternative hypothesis sying that he did not commit the crime in question. You see, the law is not an exact science, and, to require of a court to find that something has definitely happened (or, has definitely not happened) is to expect the impossible.
In the closing stages of his judgment, again, Judge van der Merwe obscures rather that clarifies the issue – remember, he has already a few pages ago said that he “finds” that consensual sex took place – “From the aforegoing [again that blasted call to draw inferences from the "aforegoing", whilst the "aforegoing"' does not really establish what follows] it is clear that the probabilities show that the complainant’s evidence cannot be accepted. She is a strong person, well in control of herself, and knows what she wants. She is definitely not that meek, mild and submissive pesron she was made out to be [what this has to do with the probability or improbability of her version is obscure].”
“On the evidence as a whole, it is clear that the accused’s version should be believed [not required in terms of the Rr v Difford paradigm referred to by the court earlier] and accepted [yes, but on what basis?]. The accused’s evidence was also clear and convincing, in spite of media efforts to discredit him [this does not talke the matter any further, because nowhere has the court found, as a matter of fact, that the complainan'ts evidence, on face value, appeared unclear and unconvincing]. At least one cannot say that the accused’s evidence is not reasonably possibly true.”
The last sentence quoted shows what the court should have said in the first place. he could have formulated the part of his finding on consensual sex more eloquently, perhaps along the following lines,
“Taking into account all the merits and demerits of the evidence presented by the state and the defence, the probabilities, and common sense, one cannot say that the accused’s evidence, that the sexual intercourse between him and the complainant took place with her consent, is not reasonably possibly true.”
As far as the allegation that JZ at the outset denied that anything untoward happened between him and the complainant, I must confess, I rely merely on media reports that he said that when first confronted. The so-called “warning statement” was only taken down much later; but then still, to be so vague in denying guilt, leaves room for an argument that the real defence of consensual sexual intercourse was only devised later, after it was established that he has been linked through DNA evidence. Nevertheless, this evidence by the investigators, which had been aluded to in the press over a few days in succession (I must confess, I was not there, so I cannot vouch for the correctness of the media reports), was not considered at all during the judgment. All that was considered was whether JZ had in fact pointed out the main bedroom or the guest room as the so-called “scene of crime”.
dontgetmestarted // Nov 28, 2008 at 12:11 pm
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You say:
‘However, now that I have got started, I must draw attention to a parenthetical remark made by PdV in the instant article during one of his more sarcastic overflows:-
“our Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got”
As I mentioned in my response to sarah, I have not had the advantage of reading the transcript of the evidence, but the entire tenor of the learned judge’s treatment of it makes it most unlikely that any such thing was said. The language of a woman “deserving what she got” is quintessential rapist-talk.’
The New York Times, April 9, reports as follows on JZ’s own evidence during the trial:
“Taking the stand for the first time this week in the rape trial, Mr. Zuma cast himself as the embodiment of a traditional Zulu male, with all the privileges that patriarchal Zulu traditions bestow on men. Mr. Zuma, who turns 64 this week, said his accuser, a 31-year-old anti-AIDS advocate, had signaled a desire to have sex with him by wearing a knee-length skirt to his house and sitting with legs crossed, revealing her thigh.
Indeed, he said, he was actually obligated to have sex. His accuser was aroused, he said, and “in the Zulu culture, you cannot just leave a woman if she is ready.” To deny her sex, he said, would have been tantamount to rape.
Such arguments have stirred a storm here, not because he insists that his accuser wanted sex — he-said, she-said arguments are not unheard of in rape trials worldwide — but because he has clothed them in what he depicts as African mores about sex and male primacy.”
Note that Judge Van der Merwe did not refer to this evidence as “quintessential rapist-talk”.
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This is all that was said in the media before Jz had been charged with rape (even before the DNA results were obtained)
“Zuma has unequivocally denied the rape allegations against him, but he has remained mum about whether he and the complainant were in a sexual relationship.
“The matter [of whether or not Zuma and the complainant were in a sexual relationship] hasn’t been [publicly] clarified, nor am I comfortable with clarifying it because, if it is the case, it’ll go to the heart of his defence,” said Hulley.”
Mouse, you mentioned 3 possible basis upon which vd Merwe J could have grounded his finding that consensual sex took place. You ommitted to mention the 4th and the most likely basis, which is that the judge completely rejected the complainant’s version on this issue and accepted Zuma’s version that there was consensual sex.
“As far as the allegation that JZ at the outset denied that anything untoward happened between him and the complainant, I must confess, I rely merely on media reports that he said that when first confronted.”
Which media reports?? As I indicated above, I do not recal/ such reports – in this regard I have been fortified by DGMS @ 11:54.
Dear Anonymouse,
Taking your last point first, the alleged rape allegedly occurred on 2 November and the complainant first alleged rape on 3 November. JZ’s warning statement was made on 10 November. Now, I am unable to say what did or did not occur in the media between those dates, but whatever it was (and the Wikipedia article Jacob_Zuma points – but without any references – in directly the opposite direction from that in which you are pointing) but it must be obvious to the meanest intelligence that the warning statement was not, as you claim, taken down “much later” than anything remotely relevant to what we are discussing.
If we are to progress any distance, you must justify or withdraw this misrepresentation, or I shall be compelled to conclude you are not in pursuit of any truth here.
Next – and, for now, all – you renew your onslaught on the way the learned judge framed his verdict by stating he “formulated his judgment imprudently”.. You might recall that, in the post of yours to which I responded, you variously claimed it was “quite unusual (and, I submit, impermissible) for a criminal court to find, as ‘hard fact’, that ‘consensual intercourse’ took place”. This smacks of tergiversation, does it not?
At least we can agree, can we, that your initial formulation (that the learned judge did not know that it was not necessary for him to make a positive finding of “consent”) is unworthy of further consideration? I prefer to advance step-by-step.
In this regard, it would be helpful if you specifically stated which of your 7 objections (mis-numbered by me, for which I apologise) remain on foot. A list of numbers would suffice at this stage, since, (for reasons which should be clear to anyone who can consult a timepiece) I have not yet finished with your response @12.17
Enjoy your lunch.
Anonymouse @12.48
What has ANY of what you imparted got to do with the precise form of words PdV used about which I complained?
I repeat them for your benefit:-
“our Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got”
In normal parlance this form of words, in a rape context (compare, “she had it coming to her” and similar), are not taken to mean that the male served the female because she expressly wished it, but that the male cannot be blamed in any way for (a) his lust, and (b) his giving way to his urges.
Are you being deliberately obtuse?
Mouse, your post beat mine by few seconds …anyway re what you quoted above: being in a sexual relationship and having sex on a specific occasion are two different things. Will you accept that your reliance on media reports [that Zuma had denied having sex at all] was also mistaken?
Bongs @12.58 addresssing Anonymouse
“You omitted to mention the 4th and the most likely basis, which is that the judge completely rejected the complainant’s version on this issue and accepted Zuma’s version that there was consensual sex.”
If you will refer to my long post, response 2, you will see that the learned judge did precisely what you mentioned. The complainant’s version was rejected on the balance of probabilities, and “on the evidence as a whole it is clear that the accused’s version should be believed and accepted” (p.173).
dontgetmestarted – My response of 12h17 relates mainly to your Responses 1-3 in your long repsonse above.
dontgetmestarted // Nov 28, 2008 at 1:06 pm
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Re your take on the “our Dear Leader did say during his rape trial that a women wearing a Kanga deserved what she got” phrase.
Well, excuse my obtuseness if I thought that
(1) his saying that her (mere) wearing a knee high skirt to HIS house and sitting cross-legged had signalled her desire for him to have sex with her; and,
(2) his saying that “he was actually obligated to have sex. His accuser was aroused, he said, and “in the Zulu culture, you cannot just leave a woman if she is ready.” To deny her sex, he said, would have been tantamount to rape.” as another way of saying “she got what she deserved”. Sounds pretty much the same to me. But that’s just me.
Bongs et dontgetmestarted – On the issue of tthe media reports on JZ having denied that he had consensual sexual intercourse with the complainant before the rape trial started = I was referring to media reports on the evidence of Commissioner Taioe and Superintendent Linda on this issue. While they were questioned on this, and while the defence put a different interpretation of what the warning statement conveyed to the witnesses, which were denied, the judge did not at all deal with this aspect of their evidence in his judgment. Instead, the judge dealt only with Taioe having led JZ into a so-called “trap” on 15 November by requesting him to point out the scene of crime. For the “trap” he ruled the evidence of the two policemen “inadmissible” – but he did not deal with their take that his warning statement actually conveyed that he did not have sex with the complainant.
I also copy my response above
>This is all that was said in the media before Jz had been charged with rape (even before the DNA results were obtained)
“Zuma has unequivocally denied the rape allegations against him, but he has remained mum about whether he and the complainant were in a sexual relationship.
“The matter [of whether or not Zuma and the complainant were in a sexual relationship] hasn’t been [publicly] clarified, nor am I comfortable with clarifying it because, if it is the case, it’ll go to the heart of his defence,” said Hulley.”<
Unfortunately I cannot remember where I copied that from while googling the issue, but it does, to an extent, make the point that I initially pondered above. Why be so secretive about the “heart of his defence” while tests for DNA were still being conducted. Surely, this might give rise to a reasonable suspicion that he first wants to see whether the state can link him with positive evidence that he had in fact had sexual intercourse with the complainant, before he decides whether he is going to plead consent? I mean, what would have been wrong with him saying, in his warning statement, under legal advice, that the complainant was lying about her having been raped by him because what had actually happened, was he had sexual intercourse with her with her consent.
Dear Anonymouse, I say nothing further to your post @2:13 pm re what PdV wrote. I have challenged him, not you, on it.
As for your post @2.35 how can the policeman’s “take” on JZ’s warning statement have any relevance here? That is a desperate throw if ever I saw one. You incorrectly stated // Nov 27, 2008 @3:52 pm that JZ, before the DNA evidence was known, “denied that anything . . had taken place between him and the complainant”
It is now incumbent on you to withdraw that statement.
Dear Anonymouse, I return to your post @12.17 so far as it concerns your objections which I have analysed as (1), (2) and (3) – those being (as I understand it from your post @12.04) the only ones now outstanding from your post of Nov 27, 2008 @3:52 pm
I confine myself here to the learned judge’s treatment of the evidence, and your continuing faulty analysis of it in your post @12.17pm
[1] The material points made by you in the first half of the operative part of your post (from “By “From the aforegoing”, the judge wants the reader . . to infer”, to the sentence beginning “You see, the law is not an exact science”) are contradicted by what follows in the second part. It is almost as if you began writing your riposte without having studied all of what I had posted. Imagine!
[2] You begin by complaining that “Nowhere else in his judgment (apart, that is, from the sentence on p.170 which I brought to light when addressing the factual dispute between Tony and ozoneblue) does he directly state that the evidence proved that consensual sex took place. Moreover, nowhere in his judgment does [he] say on what basis he grounds his conviction that consensual sex took place. Is it . . . [you then list 3 possibilities]”.
[3] In the second half of your post you hit upon one of the very passages you said (in the first half) were missing from the judgment. In one only of the passages at p.173 to which I referred you at my Response 2 and which you quote, the learned judge did indeed accept the accused’s version; but more than that, he also (as you mistakenly deny, although I told you as much in my Response 2) rejected the complainant’s entire version of the facts in so far as it was at variance with the accused’s version.
[4] His detailed destruction of her version is to be found in his analysis of the evidence seriatim, starting from her baseless claim that she and JZ were in some child-parent quasi-relationship and that she was a close friend of one of JZ’s daughters (p.152), right down to her claim that on the night of 2 November 2005 she could not signify her refusal of JZ’s attentions because she “froze”.
[5] The complainant, let us recall, admitted in cross-examination that during the “process” (by which is meant vaginal penetration and the events immediately before it) she gave no indication to the accused that she was objecting to what he was doing and that the accused could have thought she was consenting (p.47).
[6] The learned judge also rejected in toto the expert evidence led on behalf of the prosecution by Dr. Merle Friedman, by which it was sought to demonstrate that the complainant suffered from some physiological disturbance which prevented her from moving or speaking during the “process”. In this connection it is not immaterial to note (a) that the complainant weighed 85kg to the accused’s 90kg (as well as having the advantage of youth on her side), and (b) that help – in the person of a policeman – was as near as 10 meters away (p.47).
Since you have trouble in fathoming its relevance, I add here a third factor (c) that, in the assessment of the learned judge – who had ample opportunity for observing her in the witness box – the complainant was “a strong person, well in control of herself, and knows what she wants. She is definitely not that meek, mild and submissive person she was made out to be” (p.173). Indeed, there was unrefuted evidence that she had on one occasion brazenly demanded sex from one male and on another that she had climbed naked into a bath with a man whom she had known for less than a week (pp. 166f.).
[7] The learned judge regarded it as highly suggestive that there was little dispute between the complainant and the accused as to what happened before and after the alleged rape (p.153) including sexual banter between the complainant and the accused, and the complainant parading around a stranger’s house late at night in nothing but a large square cloth (the kanga, sometimes erroneously referred to by the learned judge as a “tanga” – a Freudian slip in at least two sense of the word) which did not obscure the fact that she was naked beneath it.
It was also agreed that the accused returned to the complainant’s bedroom after he had had his post-coital shower, and that the two of them then had an unexceptionable discussion about the complainant’s impending visit to Swaziland. As to matters regarding the “process” itself, it was agreed that the accused commenced by massaging the complainant and that he spoke endearments to her while he was penetrating her, and later asked for permission to ejaculate inside her.
[8] I trust it is now “clear” to all and sundry that you have still not adequately scrutinized or mentally digested the judgment you are attacking. You persist in debating the learned judge’s approach to the evidence without yourself showing any trace of having studied it.
Ok, I withdraw it – but I still think that is what he actually tried to say, but kept tthe back door open in the event that DNA evidence might link him to having had sex with the complainant. Read the quote above again (copied here) and pay specific attention to the words now in upper case from what Hulley has said in response to Zuma being “mum” on the issue.
“Zuma has unequivocally denied the rape allegations against him, but he has remained mum about whether he and the complainant were in a sexual relationship.”
“The matter [of whether or not Zuma and the complainant were in a sexual relationship] hasn’t been [publicly] clarified, nor am I comfortable with clarifying it because, IF IT IS THE CASE, it’ll go to the heart of his defence,” said Hulley.”
In other words “IF IT IS THE CASE” that JZ were in a sexual relationship (read “consensual sexual intercourse”) – not “IT IS THE CASE” – it will go to the heart of his defence.
Mouse, your desperate final kicks (do mice also kick before they die?!) have just taken away the honourable gesture you displayed at the beginning of your post @ 3:09 – an unconditional withdrawal would have enhanced your dignity as a legal scholar.
Bongs – No mice do not kick before they die as mousetraps usually sever their spinal cords resulting in immediate paralysis (small mouse finding big mouse in mousetrap: “Hey mom! Come see! Daddy bought us a Jeep!”) or, poison results an a slow, slow death where the muscles are first disabled. But, when they are still alive, like this one, they can be very troublesome critters, quite a nuisance to those who don’t like them.
Unconditional withdrawal of statements that one believes in is not part of the decorum of a dignified legal scholar. I mean, Kemp J Kemp might (grudgingly) say that he concedes that there was nothing in the papers (nor was there any evidence) of political meddling by Mbeki and the ministers concerned, as he did today, (see the blog above), but he will never say that, therefore, he believes Nicholson J’s ruling of political meddling was wrong.
Again, please note that I have not said that Van der Merwe J was wrong in acquitting JZ on the rape charge – he was afer all the sole judge in that matter – but, I do say that it is unfortunate that the investigators, the parties and the court did not specifically investigate the reason and the timing of JZ’s defence of “consent”. I still think that he, had the DNA results have been witheld until later, might have been tempted to deny that any sexual intercourse took place, as that would have been the hardest for the state to prove in the light of the dubious character of the complainant, so cleverly exposed by Kemp J Kemp and accepted by the court as part of his credibility findings. (Here we must remember, however, that even prostitutes can be, and sometimes are, raped – and that is not only when the cheque bounces.) As I have stated above, I have already encountered four cases in practice where clear evidence existed that an accused person tailored his defence according to what was available on the docket at the time. Forunately for justice, the DNA results were late in those cases, and the trials commenced without them being available. In all four cases, had the DNA evience, which later became available, not proven the identity of the accused person as the perpetrator, the relevant accused pesrons would have walked. This begs the question whether evidence such as DNA evidence should not as a rule be witheld until the accused person has disclosed his defence. This is one kind of matter where there should be a privilege claimable on certain pieces of evidence, otherwise, as in these four cases, accused persons would be allowed to circumvent justice by tailoring defences according to the known evidence.
Well, there we have it. Anonymouse originally was convinced of this:-
“I think too little attention was during the trial paid (by the state, the defence and the court) to the evidence that, first JZ alone, thereafter through his attorney, he denied that anything (even “consensual sexual intercourse”) had taken place between him and the complainant” // Nov 27, 2008 @3:52 pm
and this:-
“I daresay, there is a big possibility (even a probability) that [JZ] was intending to deny that sexual intercourse took place at all, but, for the fact of the DNA evidence, decided to change his tune. That shows that he is a person that cannot be trusted and believed . .” (ibid.)
In other words, this is a significant factor going to JZ’s unsuitability to be President of the Republic.
This objection was based on Anonymouse’s incorrect understanding that JZ had initially (that is to say, before the DNA evidence became known) denied that “anything” had happened between him and the complainant (ibid.).
Confronted by paragraph 13 of JZ’s warning statement dated 10 November, Anonymouse // Nov 28, 2008 @12:17 pm backtracked as far as to object that he was relying on media reports as to what JZ was said to have said to the police when first confronted, and that the warning statement (in which JZ palpably does say something happened of a private nature between him and the complainant) was taken down “much later”.
Since the alleged rape was alleged to have occurred on the night of 2/3 November, a gap of one week is hardly to be characterised as “much later”; however, there is more.
If, as he appears to be doing, Anonymouse believes the police first confronted JZ when they visited his house (in the course of which there occurred the fiasco of the commissioner asking JZ to point out the room where the alleged rape happened), then all I can say is that that visit was five days AFTER the day when the warning statement was taken down (pp.74-76, cf. p.77).
When challenged to withdraw his statement that JZ had initially denied that “anything” had transpired between him and the complainant, Anonymouse did withdraw it, but immediately fudged the withdrawal albeit to indistinct (if not incoherent) effect:-
“Ok, I withdraw it – but I still think that is what he actually tried to say, but kept the back door open in the event that DNA evidence might link him to having had sex with the complainant” // Nov 28, 2008 @3:09 pm.
Finally (?), Anonymouse has now further tailored his objection which originally asserted “a big possibility (even a probability)” that JZ had denied “anything” had taken place between him and the complainant of a private nature (”untoward” as Anonymouse put it) because JZ was gambling he could not be linked to a sex act with the complainant.
The context, remember, is that Anonymouse considered this false (as we can now see) nexus of external events and imputed motive was a factor morally and/or ethically disqualifying JZ from the Presidency of the Republic.
The objection has now fallen to the status of a mere possibility that JZ might have been tempted to make a denial:-
“I still think that he, had the DNA results . . been withheld until later, might have been tempted to deny that any sexual intercourse took place, as that would have been the hardest for the state to prove in the light of the dubious character of the complainant” // Nov 28, 2008 @6:17 pm
What survives from this shambles is a most unusual and heterodox proposal that, in a criminal matter, vital evidence (I do not know why DNA evidence should be regarded as sui generis) should be withheld by the State from accused persons on the ground that if it were known to them in advance of their committing themselves to a specific version of the facts, they “would be allowed to circumvent justice by tailoring defences according to the known evidence”.
I prefer, as I have said before, to advance one step at a time and I see no reason for descending from the particular to the general.
Anonymouse’s entire argument that JZ is unfit for high office, in so far as based on these particular maunderings, has now utterly collapsed. We are now entitled, I think, to a full retractation of the absurd and unjustified objection made at the end of the post dated // Nov 27, 2008 @3:52 pm – this being the only fair and proper outcome of a debate which Anonymouse himself instigated.
Have a nice night.
Ozoneblue, I concede the phrase I used was unfortunate. I did not mean to imply that Zuma forced himself on the complainant – merely that he suggested that wearing a Kanga showed that the complainant wanted consensual sex and that as part of his Zulu culture he could not leave an aroused woman unattended. I apologise for the unfortunate turn of phrase used.
dontgetmestarted – “8] I trust it is now “clear” to all and sundry that you have still not adequately scrutinized or mentally digested the judgment you are attacking. You persist in debating the learned judge’s approach to the evidence without yourself showing any trace of having studied it.”
I still say that, even though the judge rejected the complainant’s version in the end (he did seem to sort-of believe it at the end of the state’s case though – and when he rejected it, as I pointed out from the judgment, he appeared somewhat indecisive as to whether he should reject it on a balance of probabilities [thecivil standard] or on acceptance that there exists a reasonable possibility of JZ’s version being true [the criminal standard]), he was wrong and not entitled to make a positive finding that consensual sexual intercourse did in fact take place. What you apparently do not understand is that I am NOT saying that Judge van der Merwe was wrong in acquitting Jacob Zuma according to the available evidence, and after having considered and weighed the defence version against that of the prosecution (which did justify a conviction had the defence not answered). What I am saying is that he expressed his finding incorrecttly. Nevertheless, even accepting as a hard fact (carved in stone) that consensual sexual intercourse did in fact take place (whic simply is not possible in law – it is impossible to assert anything positively with two or more opposing versions), JZ’s version as to how he interpreted her “invitation” to him to have sex with her remains patriarchally sexist and despicable; and, knowingly indulging in unprotected sex with an HIV positive woman whilst in the process endangering wis other wives and sexual parners; and, having sex with a woman half his age, the duagther of a family friend and comrade, all of that taints his character.
As far as the DNA thing is concerned, I still maintain, even though the thing was not properly investigated and presented to court, and even though the prosecution did not properly persue the issue in court, which I still think might have provided an interesting twist to the tale, there are reasonable grounds of suspicion that JZ was just awaiting the DNA results before he decided what defence to use – denial of sexual intercourse or averring consent. That much is clear from the way in which he framed his so-called warning statement and the way in which Hulley framed his response to the media while the DNA results were still being awaited.
That is my opinion of the character of Jacob Zuma – I don’t trust him – and that’s it.
Anonymouse,
Although I have said no word, I have been following this debate with interest. All I can say is that I don’t think I could have put my point across any better than you are doing.
I don’t see how the judge could have concluded positively that consensual sex took place.
Dear Anonymouse, I did not fail to notice or grasp the fact that you are not contesting the verdict as such. The actual verdict is irrelevant to the debate we have been engaging in.
The van der Merwe issues:-
The issue, as you first raised it, was that the learned judge did not know his job (if I may put it so crudely), and wrongly thought he was legally compelled to make a positive finding of “consensual sex” if he was to acquit JZ on a charge of rape. I understand you to have abandoned that extreme version.
You toned down your original claim that it was “impermissible” for the learned judge to come to the conclusion that consensual sex had occurred on the night in question, and later wrote that he was “imprudent” in framing his conclusions as he did. You have now switched to a third formula, namely “that he expressed his finding incorrectly”. In light of these evasions, I shall not revert to your argument on this point again.
The learned judge’s approach to the evidence – initially on one specific point relating to what JZ did or did not say when first confronted by the police, as to which you have certainly conceded – was a subsidiary topic.
The point YOU are missing is that in a case where there are two versions, if a judge rejects one of the versions and accepts the truth of the other, he is entitled to make a positive finding of fact in favour of the version he has accepted.
You say:- “which simply is not possible in law – it is impossible to assert anything positively with two or more opposing versions”. This is not a jurisprudential issue but an epistemological one, on which you are taking the classic sceptical line.
On the other hand, you do not apply scepticism in all its rigour or at all when it comes to adjudicating, as you freely do, upon JZ’s secret motives – although here, too, your initial near-certainty that there was a “big possibility (even a probability)” that he had some particular plan in mind, has now deflated to “reasonable grounds of suspicion”. Your inconsistency with regard to the viability of outright scepticism is something you need to work out on your own.
Whether or not the judge was justified in choosing as he did between the two competing versions is a different issue altogether, and I have deliberately prescinded from that debate. See, for example, my response to Nombuso // Nov 27, 2008 @2:13 pm in the thread “Fit and proper person”.
The JZ issues:-
Your argument that JZ is unfit for high office because he (a) is a patriarchal sexist and (b) was reckless with regard to the safety of his wives and other sexual partners by (c) having one bout of unsafe sex with an HIV positive female (d) half his age, (e) the daughter of a former comrade, begs rather a lot of questions.
(a) your assessment of JZ’s behaviour on the night in question seems to have been moulded more by shock-horror media reports than by the totality of the evidence. To the extent that JZ’s view of the sexual receptivity of the complainant was correct (as we must now assume), his response, in his eyes, was a matter of common decency. I cannot see that it deserves to be dubbed “patriarchal and sexist”.
(b) you and I know nothing of the state of JZ’s sexual relations with his wives or, indeed, anyone other than the complainant; for all you or I know, he may have discontinued marital relations previous to 2 November.
(c) the level of risk for a male in having a single bout of unsafe sex with an HIV positive female was discussed by me in a response to sarah palin earlier in this thread // Nov 28, 2008 @11:49 am, to which I refer you.
(d) it is at best pompous and at worst sexist and age-ist of you to conclude there is anything adverse to be deduced about a man’s character simply from the fact that at age 63 he is prepared to have sex with a woman aged 31.
(e) I have no idea why this fact should be thought relevant.
This much said on hios foitness for office, I repeat that JZ has admitted to adultery – but that is a point you have not (yet) objected against him.
The obtuseness issue:-
Finally (?!) I cannot forbear from observing that PdV, at least (// Nov 29, 2008 @7:02 pm, incorrectly believing he was replying to ozoneblue) understood my concerns that his language was, as he now concedes, “unfortunate”. Although no one else has weighed in on it, maybe it is indeed just you who sees nothing problematic in imputing to a man who has been acquitted of rape the belief “she got what she deserved” (cf. its analogues “she had it coming to her”, “she asked for it”, and similar).
Have a nice day.
Although it seems absurdly late in the day to say it, this debate between Anonymouse and me is more properly conducted under the thread “Fit and proper person”.
On the other hand, the trigger (was or was there not a finding of consensual sex in the judgment in the 2006 rape trial) did derive from some previous spats in this thread (to which PdV himself was party, on occasion) regarding the rape trial and what can or cannot fairly be deduced about JZ’s fitness for high office from what he did or did not say in the course of it, and from what he did or did not do to or with the complainant.
PdV // Nov 29, 2008 @7:02 pm
If that is a response to what I wrote // Nov 28, 2008 @12:11 pm, it is duly noted.
DGMS, any view on NPA’s appeal?
Bongs, if I had (have) anything worth sharing on the NPA’s appeal, I would (will) post it under the relevant thread. The rape trial got an alarming mileage under “Articles 16 and 17 of the Constitution”, as it is.