Former deputy president is not entitled to a discharge, says judge

Jacob Zuma must take the stand in his rape trial - or face the prospect of jail.

This was Johannesburg High Court Judge Willem van der Merwe's clear message to Zuma as he yesterday dismissed the former deputy president's application for the rape case against him to be thrown out of court.

Kemp J Kemp SC, Zuma's counsel, applied for the discharge, arguing that the state had not proved beyond a reasonable doubt that Zuma had raped a 31-year-old, HIV-positive family friend at his Johannesburg house.

Homing in on aspects of her testimony that he considered inconsistent, Kemp called the woman an accomplished liar and told the court there was no medical evidence of rape.

While Judge Van der Merwe adjourned to decide on the application, bets were made in Court 4E on whether Zuma would walk free. Zuma himself chatted and joked with his supporters in the front row of the public gallery.

Judge Van der Merwe returned in less than an hour, arranging his legal books and pens carefully before taking his spectacles out of their case. Police Superintendent Peter Linda and Commissioner Norman Taioe - whose evidence Kemp had asked the court to find inadmissible - were on the edge of their seats as the judge poured himself a glass of water.

Delivering his ruling, the judge said he was of the opinion that a finding of mens rea (guilty mind) to rape could be made if no more evidence were led.

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

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

He said he had made his decision without taking into account controversial and incriminating police evidence. This evidence was that Zuma had identified the complainant's room as the "alleged crime scene" - in direct contrast to his later account of the sexual encounter, which he claimed had occurred in his bedroom.

Earlier, the judge had quoted from a number of legal precedents that 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, the judge pointed out.

"Only if the evidence of the witnesses was of such poor quality that there is no possibility that it can be accepted, can it be ignored. I can therefore not ignore the evidence so far led."

Judge Van der Merwe would make a ruling on the policemen's testimony at the end of the trial.

Earlier, Zuma's defence accused Taioe and Linda of lying about the incriminating admission.

But later the 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 in which to prepare himself to take the stand in his own defence and publicly put forward his version of the alleged rape incident.

And, in addition to testifying about the events before, during and after his alleged November 2/3 rape of a family friend, Zuma also faces the prospect of being grilled about his own sexual history and his HIV status.

While Zuma has admitted that he knowingly had unprotected sex with his HIV-positive accuser, his legal team have yet to provide the court with any explanation why he did so, other than to say there had been no condom available.

After Judge Van der Merwe's ruling, a sombre Zuma left Court 4E, flanked by at least by half-a-dozen bodyguards.

But outside he smiled, raised his arms and waved his hands at his supporters, prompting cheers from the crowd.

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

Meanwhile, sources in the Zuma camp said Zuma was unfazed by the judge's dismissal of the application.

"The old man (Zuma) said he was looking forward to clearing his name - and now he has the opportunity," a source said.

With acknowledgement to Karyn Maughan, Gill Gifford, Jeremy Gordin, Sapa and The Star.