If that is a response to what I wrote // Nov 28, 2008 @12:11 pm, it is duly noted.

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.

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 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.

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.

“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.

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.