The state of Jacob Zuma’s mind at the time he allegedly raped a family friend could prove to be his undoing – or what saves him from a conviction in the Johannesburg High Court.

In his battle to have the rape charge against Zuma thrown out, defence counsel Kemp J Kemp SC has questioned whether the former deputy president intentionally forced the complainant to have sex with him, or could reasonably have believed the encounter was consensual.

Zuma has pleaded not guilty to rape.

Using the standard common law test of criminal liability or mens rea (intent), Kemp led the court through the events before, during and after the sexual encounter on November 2 at Zuma’s Forest Town home in Johannesburg, arguing that these provided indications that Zuma believed he was having consensual sex.

Kemp also pointed out that the complainant herself had conceded under cross-examination that Zuma could have believed that the encounter was consensual, but Mr Justice Willem van der Merwe warned Kemp not to forget that the case against Zuma “might have differed so much from the type of violent rapes frequently handled by the courts because of the father-daughter relationship that the accuser had claimed to have had with Zuma”.

Kemp said the court needed to evaluate how the conduct of both Zuma and the complainant could have been interpreted by Zuma.

Three months before the alleged rape incident, the woman had testified that she and Zuma had joked about boyfriends and she had told Zuma that the “current crop” of young men were not “man enough”.

According to Kemp, Zuma could reasonably have inferred “Well, I’m not one of the current crop”.

During the conversation on the night of the alleged rape, Kemp said, Zuma and the woman had engaged in a “rather explicit conversation” which centred on the physical needs of HIV-positive people, ending with Zuma suggesting she lower her standards so she could find a companion.

Kemp said Zuma would say that he had in fact offered to comfort the complainant.

He said the complainant, after at first testifying that she had only “acknowledged” the comments, had later admitted that she had nodded and said “yebo (yes)”.

The trial continues.

With acknowledgement to Karyn Maughan, Gill Gifford and Cape Argus.