Johannesburg : Jacob Zuma needs to take the stand in his rape trial. This is the implication of Justice Willem van der Merwe's decision dismissing the former deputy president's application for the case against him to be thrown out of court.

Zuma will need to persuade the court there was no criminal intent to rape as the judge has found that, if no more evidence is led, a finding of mens rea could be made on the testimony before him.

"I cannot agree with the defence that the evidence led by the state (against Zuma) was of such a poor quality that it could not be accepted," the judge said.

"I cannot ignore the evidence so far led by the state.

"If there is no further evidence put forward, a finding of mens rea (criminal intent) to rape can be made."

Zuma's counsel, Kemp J Kemp, had also asked that the high court give its view on the state's prospects of success.

After the ruling, sources in the defence camp claimed Zuma was unfazed by Judge Van der Merwe's decision.

"The old man said he was looking forward to clearing his name - and now he had the opportunity," the source said.

The judge said he had made his decision without taking into account controversial and highly incriminating police evidence that Zuma had identified the complainant's room as the "alleged crime scene" - in contrast to Zuma's statement later that the sexual encounter had occurred in his bedroom.

Also, he was of the opinion that, if no more evidence was led, a finding of mens rea (guilty mind) to rape could be made.

"The accused is not entitled to his discharge," he said.

After quoting a number of legal precedents Kemp had presented, Judge Van der Merwe asked: "With the foregoing in mind, the question in the present matter then remains ... is there evidence on which the accused in this matter might reasonably be convicted?

"Put differently, is there a possibility of a conviction even if he does not enter the witness box and then incriminate himself? Put even more simply, will the accused be convicted at the end of the case if he closes his case without testifying or without leading evidence?"

In deciding the question, the credibility of witnesses played a limited role. "Only if evidence of the witnesses was of such poor quality that there is no possibility that it can be accepted, can it be ignored."

Judge Van der Merwe noted that Kemp, in an able, well-prepared and persuasive argument concentrating on mens rea, had asked him to find that the evidence was of such poor quality.

"In strong argument, he submitted that a court cannot conclude that the state had proved mens rea beyond a reasonable doubt.

"In the first, I cannot agree that the evidence led by the state is of such poor quality that it cannot be accepted.

"I can therefore not ignore the evidence so far led. I am of the opinion that there is evidence before me that, if nothing more is said, a finding of mens rea to rape can be made."

The judge said he would make a ruling on the police men's testimony at the end of the trial.

Earlier Zuma's defence had accused Commissioner Norman Taioe and Detective Superintendent Bafana Peter Linda of lying about the incriminating admission.

But later the defence team claimed that the police had engaged in a deliberate strategy to trap Zuma.

Kemp asked that the evidence of Taioe and Linda should be ruled inadmissible because Zuma had not been warned of his rights.

Zuma has four days to prepare his defence and publicly put forward his version of the alleged rape.

Other than testifying about the events before, during and after his alleged November 2 rape of a 31-year-old family friend, Zuma faces the prospect of being grilled about his sexual history and his HIV-status.

Zuma has said that he knowingly had unprotected sex with his HIV-positive accuser, but his legal team has yet to give the court with an explanation for his doing so.

His defence team claimed in Zuma's discharge application that "the fact that the complainant is HIV-positive is neither here nor there".

"Whether intercourse was consensual or not, it was clearly a factor which Zuma, apparently well-versed in HIV matters, decided to take the small risk of," his counsel said.

After the ruling yesterday, Zuma was uncommonly sombre as he left Court 4E flanked by at least six bodyguards.

But he smiled, raised his arms, and waved his hands at his supporters, prompting the crowd to respond with cheers.

His aide, Ranjeni Munusamy, battled to hold back tears as she made her way out of the court building.

A visibly relieved lead prosecutor Charin de Beer said the state had "always believed that we had a proven case and we are prepared for the next phase of the trial".

With acknowledgement to Karyn Maughan, Gill Gifford, Jeremy Gordin, Sapa and Cape Times.