Several arguments will be fielded by former deputy president's defence team in an attempt to show that state case is one Zuma does not need to answer' March 26, 2006

Tomorrow at 9.30am Kemp J Kemp, SC, will apply for Jacob Zuma's discharge from his rape trial on the basis that the prosecution has not presented a sufficiently persuasive case.

Kemp, the leader of Zuma's defence team, said this week that he intended to apply, in terms of section 174 of the Criminal Procedure Act, for the case to be thrown out of court because the state's case was not one "that Zuma needs to answer".

Kemp estimated that his application, including "discussion", as presiding Judge Willem van der Merwe prefers to call assertion and rebuttal, would take about a day-and-a-half.

"Does that include the time it will take me to make my judgment [on your application]?" asked Judge Van der Merwe.

"Well, of course I don't know how long it will take your lordship to make a judgment," Kemp replied with a slightly embarrassed smile.

"Indeed," responded Judge Van der Merwe. "But you can see that I am ready for your application," he added, gesturing towards a number of legal tomes that his clerk had brought into court 4E of the Johannesburg high court on Thursday morning.

The judge said he regretted that to allow the defence time to prepare its application he had to adjourn the case to Monday. "We all want to get this over with as fast as possible," he said.

Based on the case presented by Charin de Beer and Herman Broodryk, SC, who closed the state's case on Thursday, and on Kemp's cross-examination of the state witnesses, Kemp is likely to argue for the following reasons that Zuma should not be forced to present evidence in answer to the state's case.

The state's case is that Zuma had sexual intercourse with the 31-year-old complainant without her consent at his Forest Town home on the night/early morning of November 2/3.

According to current South African law, rape is defined as "intentional unlawful sexual intercourse with a woman without her consent". During her cross-examination by Kemp the complainant testified that Zuma "could have" interpreted their encounter as consensual.

The "cautionary rule" in rape cases, requiring courts to exercise additional care in assessing the credibility of a rape survivor, simultaneously requires that the state produce evidence corroborating the account of the person who has allegedly been raped.

Kemp is expected to argue that the state's medical evidence failed to show conclusively that the complainant had been raped and that the accounts of the complainant's emotional response to the alleged rape - given by her mother, friends and the psychologist who examined her - were insufficient to prove her version beyond reasonable doubt.

After successfully bringing a formal application to question the complainant about her sexual history, Kemp devoted a huge chunk of his cross-examination of the woman to questioning her about rape allegations she had made against a number of different men.

The woman said she had been sexually abused on two different occasions by two different men when she was 13 years old, and impregnated by an unknown rapist, whom she believed was her schoolmaster, while she was in a "coma" at the age of 19.

She denied, or said she could not remember, several other incidents in which she had allegedly made claims of rape against a church council member, a pastor, a Namibian national named "Goeieman" (now deceased) and a fellow seminary pupil called Nestor.

It is expected that Kemp will suggest the complainant's multiple alleged rape claims undermine her credibility. He may also argue that the complainant's evidence that she "lied" - as she phrased it - to reporters from two newspapers on the advice of her "police minder" also raised questions about her credibility.

Kemp has said he will argue that the evidence presented to the court by police commissioner Norman Taioe and Superintendent Bafana Peter Linda, the police officers in charge of the Zuma rape investigation, ought to be found inadmissible.

Kemp will note that they failed to read Zuma his rights when they met him for the second time at his Forest Town home on November 14. Secondly, the officers failed to fill in the correct forms related to a "pointing out" of an alleged crime scene by a suspect.

A "pointing out" can, legally, amount to an "admission of guilt" and must therefore be properly documented. Taioe said that "filling in the forms" had "slipped his mind".

This issue relates to the officers' claim that Zuma, who was in the company of Michael Hulley, his attorney, had pointed out the guest room of his home as the scene of the alleged rape, or at least acknowledged that this was the place of the "alleged crime scene", and also allegedly told the policemen that "nothing" had happened in his bedroom. The complainant said the alleged rape occurred in the guest bedroom, while Zuma claims they had consensual sex in his bedroom.

Presumably Kemp will also apply his mind this weekend to explaining why the police officers would want to lie about the matter, especially as Taioe stated on the record that privately he was "pro-Zuma".

In addition, on Thursday, instead of calling "mystery witnesses", the state put on record the transcript of a radio interview given on the Cape Talk radio station on November 14 by Hulley.

In the interview, Hulley clearly suggested that neither Zuma nor he knew anything definite about a rape complaint or its details. But four days before, on November 10, Zuma and Hulley had met Taioe and Linda at Nkandla, Zuma's home in KwaZulu-Natal, and given them a prepared statement related to the alleged rape.

A week-and-a-half ago, Kemp said to Linda in court: "I put it to you that the accused and his lawyer will say that they were not asked to point out or direct you to the alleged scene of the crime."

In other words, Kemp was clearly pitting the credibility of Zuma and his attorney against that of the two police officers. Kemp will now have to deal with the question mark that has been raised over Hulley's credibility.

If Zuma's application is denied by Judge Van der Merwe, the defence will have to present its case. Among the witnesses Kemp has indicated he will call are:

Zuma: According to Kemp, Zuma would testify that his sex with the complainant was consensual and followed a massage with baby oil. The major contrast in his evidence, relative to that of the complainant, will relate to where they had sexual intercourse.

Duduzile Zuma: Zuma's 20-year-old daughter, who was staying in her father's Forest Town home on the evening of the alleged rape, is expected to testify about the events that preceded the incident. According to Kemp, this testimony would include claims that the "inappropriately dressed" complainant had asked to be taken to Zuma's study in the hours before the alleged rape.

"Charles": The complainant testified that he raped her when she was 13 years old. Although "Charles" was convicted of having sex with a minor, Kemp said he would deny having ever had sex with the complainant.

"Mashaya": The complainant wrote that he raped her when she was 13 years old. She later said this was not the case and that he attempted to rape her but stopped because she was menstruating. Kemp said "Mashaya" would testify that he and the complainant were sexually involved as adults for a number of years.

Two female street committee members: They, according to Kemp, would claim that the then 13-year-old complainant denied being raped after earlier making sexual abuse allegations against "Charles" and a man called "Godfrey". She allegedly told them both men had been her boyfriends.

Dr Louise Olivier: The You magazine "agony aunt" was in court throughout the complainant's testimony and cross-examination, as well as during the evidence presented by Dr Merle Friedman, the state's expert psychologist.

She is expected to challenge Friedman's evidence about the complainant's behaviour during and after the alleged rape incident, as well as the manner in which the complainant was psychologically evaluated.

 With acknowledgements to Jeremy Gordin, Karyn Maughan and Sunday Independent.