NGOs+lose+application+to+intervene+in+rape+trial,+Friends+of+JZ



=NGOs lose application to intervene in rape trial=

Friends of Jacob Zuma, 27/3/2006 06:25:23 PM
Judge Willem van der Merwe on Monday rejected an application by three gender advocacy groups to be admitted as Amici Curiae (Friends of the Court) in the rape trial against ANC Deputy President Jacob Zuma.

In delivering judgement on the matter, Van der Merwe said he could not see how the applicants in the matter - Tshwaranang Legal Advocacy Centre, the Centre for the Study of Violence and Reconciliation and the Centre for Applied Legal Studies – would assist him in determining “on a factual basis” what actually happened on the night in question.

“None of the three applicants can contribute to any fact relevant to the act in question. Even the complainant is at present not in favour of the application,” the Judge said.

The application by the three NGOs was opposed by the State and the Defence.

The Judge expressed his irritation over public comments regards his decision to allow the Defence to question the complainant about her sexual history.

“Unfortunately many people have lots to say about the reason for allowing the cross-examination... where I clearly (said) that the reasons will follow later.”

He also remarked in court that a television programme he had watched on Sunday claimed that she had not been given the opportunity to tell her whole story in evidence.

“Everybody is talking about that... what utter nonsense!” he said.

The Section 174 application by Zuma’s legal team for a discharge of the case only began late on Monday afternoon as most of the day had been taken up by arguments and judgement in the Amici Curiae application.

Defence advocate Kemp J Kemp questioned whether the State had presented sufficient evidence to convict Zuma beyond reasonable doubt.

Day 11 of the high-profile trial began with the advocate for the three NGOs Peter Hodes, Mark Thatcher’s former lawyer, submitting an application for the gender groups to be admitted as Amici Curiae. He said they wanted to lead “expert evidence” in written and oral form before the Defence began its application for the case to be discharged.

Van der Merwe enquired at the start of the application whether any of the applicants could help him in finding out what actually happened in Zuma’s house on November 2 last year, when the alleged rape occurred. Hodes said his clients would not be able to say “who did what to whom or who said what to whom” but would provide evidence regarding the psychological aspects related to rape cases.

Hodes said while he accepted that the court had already heard the evidence of the psychologist called by the state, Merle Friedman, there were constitutional, human rights, privacy, and human dignity issues which his clients were concerned about.

“What we wish to do is place evidence before the court before the accused is put on his defence. The accused should be able to react (to our arguments),” Hodes said.

He said his clients wanted to deal with “stereotypes and myths” about victims of sexual abuse and wanted to move away from “traditional misconceptions”. Hodes said until the state closed its case, he would not have been able to tell which witnesses the prosecution would call and therefore, he could not have made the application earlier.

He said his clients had tried to communicate the complainant by SMS about the application but had heard via an intermediary that she did not support the move by the three NGOs. Hodes said the Amici Curiae was not required to be neutral and was seeking to intervene in the matter because they wanted Zuma to be found guilty.

Opposing the application, Prosecutor Charin de Beer said there was nothing the NGOs wanted to say which would contribute to the case. She said the expert evidence they wanted to lead was “almost identical” to that of Friedman. She said Freidman’s evidence was in fact specifically about the complainant as opposed to the general views about rape victims which the gender groups wanted to present.

She said the applicants “want to take over the function of the court”, and that any legal arguments on the matter was the “state’s duty”. She said the applicants were welcome to make their research available to the state and Defence without being an active participant in the case.

De Beer said the rights of the accused (Zuma) had to be taken into account and it was not in the interests of justice to stack the odds against an accused person. The rights of the accused had to be balanced against the rights of the complainant, De Beer said.

She said the application by the three advocacy groups was tantamount to “gross interference of an outside party” to further their own cause. De Beer said the views of two of the women involved in the application had been televised was a “violation of the sub judice rule”.

It was unheard of to allow an Amici Curiae at this stage of the proceeding and it would be a gross departure from criminal procedure, De Beer said.

“If we allow this group today, who is there tomorrow?”

Kemp said the first issue of concern for the Defence was the prejudice Zuma would suffer in the matter. He said granting the application would lead to at least a three to four week delay in proceedings as one of the expert witnesses the applicants wanted to call was out of the country. He also questioned who would bear the costs for the additional court time and delays in the matter.

Kemp cautioned that allowing the groups to lead further evidence might necessitate the complainant being recalled to the witness box. He said he could not see how the applicants’ intention to lead evidence on “general power relations” would help the court in this case.

He said it was clear that the purpose of the Defence’s cross-examination of the complainant about her sexual history was being “wholly misunderstood”. He said it was certainly not his intention to portray her as a “loose woman”. He ended by saying that it was “very unfair for us to be faced at this stage with this application”.

After an adjournment to consider the arguments, Van der Merwe said he would have wanted more time to explain in detail why he reached the decision he did. He said much had been said about his decision to grant the Defence permission to question the complainant about her sexual history but nobody, not even counsel, knew his decisions for doing so. He rejected suggestions that the purpose was merely to discredit the complainant.

He said he was satisfied that Friedman had dealt with all aspects of what the applicants wanted submit. There was also no provision in the Criminal Procedure Act to allow for the procedure envisaged by the applicants. The cases Hodes had referred to as precedent had dealt with completely different matters from that which he had to deal with in this case, the Judge said.

He said a court case was like a game of chess and that the parties determine their positions based on what the other does. He said if further evidence was allowed, it could mean the Defence’s whole strategy may change. He said it perhaps would have been appropriate if the applicants had approached the state before it had closed its case to question which additional witnesses it would call.

“I cannot see how the application can assist me on the matter which I must decide on a factual basis. Therefore I am satisfied that the application cannot succeed,” said Van der Merwe.

Kemp then began his application for the case to be discharged in terms of Section 174 of the Criminal Procedure Act. He said the test in law was what any “reasonable man” would think of the evidence presented by the State. He argued that there were “inherent weaknesses” in the State case and asked whether what had been presented was sufficient to convict beyond reasonable doubt.

He asked whether, if the Defence closed its case immediately, there was sufficient proof before the judge that a crime had been committed for him to make an unequivocal decision to convict. Kemp will continue his argument in the discharge application on Tuesday.


 * From: http://www.friendsofjz.co.za/showarticle.asp?id=92**

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