Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 September 2017

On “Khwezi”, a rape acquittal, and the limits of “legal truth”

In Khwezi: The remarkable story of Fezekile Ntsukela Kuzwayo, author Redi Tlhabi writes about the women who accused President Jacob Zuma of raping her: “I wanted her to know that I was writing, unapologetically, as a feminist who believed her.” Those who contend that “legal truth” is the only “truth” that counts will find fault with this statement. They might even find it shocking that Tlhabi is prepared to believe Fezekile Kuzwayo – despite President Zuma being acquitted of rape. But for anyone who has thought even fleetingly about the nature of “truth” and the complex relationship between the “legal truth” and the facts, Tlhabi’s statement will not necessarily be controversial.

It is trite to state that something does not only become “true” when a court rules that it is true. One does not need a court to rule that apartheid was evil to know that it was so. Neither does one need a court to rule that PW Botha was guilty of a crime to believe that he was a thoroughly evil man who did and said really bad things.

And neither does one need a court to rule that the Gupta brothers are guilty of money laundering, corruption and fraud, to conclude that they are not honourable people – all you need is to keep your eyes open and to read the newspapers.

Court judgments (and findings of fact contained in such judgments) cannot change what actually happened – although such court judgments will usually contain “legal truths” that can either confirm what we already know or can present a powerful counter-narrative of what might or might not be “true”. Court judgments will also often have very tangible consequences – they could lead to imprisonment of a person convicted of a serious crime or could, conversely, lead to the acquitted person taking up a powerful position in government or the private sector.

If an accused is acquitted of a crime, he or she would also be able to sue anyone for defamation who claims that he or she committed a crime, and that accused may well – depending on the facts – succeed with his or her claim. In such a defamation case, the fact that the accused person was acquitted will provide important (but not conclusive) evidence that the claim about the litigant’s involvement in a crime was false.

There is a good reason why we take factual findings made in a court of law seriously and why we often accept such “legal truths” as the actual truth.

Judges are trained to evaluate facts presented to them in court (sometimes by witnesses who are then cross examined). Judges and other presiding officers are also trained to make factual findings in as impartial and fair a manner as is humanly possible. Unlike ordinary citizens, we assume that judges and other presiding officers are more likely to evaluate the available evidence fairly and come to a fair and impartial conclusion.

However, it would be misguided to assume that the “legal truth” and the actual truth is always exactly the same thing.

First, the factual findings made by a presiding officer may differ depending on whether the presiding officer is determining whether the state has proven the required facts beyond reasonable doubt in a criminal case or whether he or she is determining whether the plaintiff in a civil case has proven the required facts on a balance of probabilities.

For example, a court may decline to convict an accused person of rape because – in the opinion of the judge (is the judge male or female, a victim of sexual assault or not?) – the state had failed to prove beyond reasonable doubt that the accused had sex with the complainant without her consent. Yet, the same court – evaluating the same facts – may find the rapist liable for causing pain and suffering because the accused had sex with the complainant without her consent, and the court may then award damages to the complainant for her pain and suffering.

The law rightly requires the state to prove the criminal case against the accused beyond reasonable doubt because of the potentially far reaching consequences (including a long period of imprisonment) that may flow from a criminal conviction. But this means many individuals who commit crimes are never convicted. In such cases an acquittal does not mean that the person did not commit the crime (although it could mean that in specific cases). It merely means that the state was unable to prove beyond reasonable doubt that the accused committed the crime.

Of course, one of the greatest problems with the criminal justice system is that most criminals are never arrested nor prosecuted. So courts more often than not do not even get the opportunity to consider the guilt of perpetrators of crime. In rape cases, this problem is even more acute. As my colleague Dee Smythe has found, about 150 women daily report being raped to the police in South Africa. Fewer than 30 of the cases will be prosecuted, and no more than 10 will result in a conviction. This translates into an overall conviction rate of 4% – 8% of reported cases. This means the vast majority of rapists in South Africa are never convicted of rape.

A second reason why the “legal truth” and the actual truth might differ relates to the adversarial nature of our legal system. Where a case does end up in court, the focus of the court proceedings in our adversarial system is a battle between the two sides. The battle occurs within the parameters of a long list of procedural and evidentiary rules which limit what facts can be placed before the judge. The idea is that this battle is likely to produce the “truth” – or at least an acceptable version of the “truth” (a “legal truth”, if you will). But this is an optimistic assumption that will not always hold water where the two sides do not have access to the same resources.

Unfairness in an adversarial system often arise where the parties do not have “equality of arms”. A better resourced party may be more able to gather evidence and present a stronger case to the judge than their opposition. Such a party would also be able to buy the services of the best lawyers who would be far more successful in leading evidence and discrediting the witnesses of their opponents during cross examination.

In criminal cases the state is often under resourced, so when the state prosecutes a powerful person with deep pockets (such as a powerful and rich businessman or politician), it is more likely that the accused will be acquitted – whether he or she actually committed the crime or not.

A third reason why “legal truth” and the actual truth may differ relates to the difficulty most of us have with assessing facts in an absolutely impartial manner. (I avoid using the term “objective” as being “objective” is clearly an impossible ideal.)

While judges are probably better at this than most people fuming on Twitter, there is always a danger (although this is difficult to measure) that the presiding officer may be more likely to believe the powerful, upper middle class, male, or white businessman or politician than s/he would believe a working class, black woman.

The danger of gender bias in rape cases is even more acute than the various other types of bias are in other cases. It takes a random search on Google for me to chance on a 1990 US report of the Florida Supreme Court “Gender Bias Study Commission” which contains the following explanation on gender bias in rape cases in its executive summary:

The myth that victims sometimes prompt their own rapes has resulted in a criminal justice system that believes there are really two kinds of rape, ‘real rapes’ and ‘other rapes.’ The Commission found that many lawyers, judges and law enforcement personnel believe that some people who are sexually molested somehow precipitate it through their dress or behavior [sic]. The Commission has determined that this belief effectively removes responsibility from the offenders and excuses coercive sexual abuse and personal humiliation of the victim. The Commission also found that the criminal justice system generally does not vigorously prosecute rapes by assailants who are acquaintances of the victims. The net effect of society’s bias against rape victims is to deny them equal protection of the laws.

For these and many more reasons (including the problem that a presiding officer may get the law wrong), one cannot say with certainty that every person who is charged and then acquitted of a crime, did – in fact – not commit the crime.

Think of the example of Oscar Pistorius. He had the best lawyers that money could buy, and was not only famous, but also male and white. The High Court at first acquitted him of murder and only convicted him of culpable homicide – despite the fact that the state presented credible evidence to suggest that he murdered his girlfriend after fighting with her.

Although he was later convicted of murder (on the basis that he intentionally shot and killed somebody behind the bathroom door) this does not necessarily mean we have to accept his version of what happened on that terrible night. A reasonable person (one not required to form an opinion only if that opinion is shown to be true beyond reasonable doubt) may well not believe Pistorius’ version of events.

For the same reasons, the statement by Redi Tlhabi that she believes Fezekile Kuzwayo is perfectly compatible with the rape acquittal of President Jacob Zuma.

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