THE CASE OF S V ZUMA: Implications of allowing evidence of sexual history in rape trials

Jake Moloi

doi:10.17159/2413-3108/2006/v0i18a985

Abstract

Rape is one of the most underreported crimes worldwide, not least because of the trauma facing complainants once the case goes to trial. The case of S v Zuma was a clear illustration of this problem. The court’s decision to allow Zuma’s lawyers to cross-examine the complainant about her sexual history (governed by section 227 of the Criminal Procedure Act) has far-reaching implications. The court’s failure to deal properly with section 227 has set a worrying precedent that is now binding on the lower courts where the majority of rape cases are heard. Moreover, the judgment does not reflect a consideration of the impact on the complainant’s right to human dignity, privacy and equality. This means the court missed an opportunity to align section 227 with the constitutional dictates that now govern the administration of justice in South Africa.

Highlights

Rape is one of the most underreported crimes worldwide, not least because of the trauma facing complainants once the case goes to trial
Police officers were present in large numbers, and scores of people were dancing, chanting and singing outside the court building
It immediately becomes obvious that the application made to lead evidence and crossexamine the complainant about her sexual history would necessarily limit her fundamental rights, and that the provisions of section 227(2) should have been pitted against section 36 of the Constitution for validity

Summary

Introduction

Rape is one of the most underreported crimes worldwide, not least because of the trauma facing complainants once the case goes to trial. Which shrewd defence lawyer appearing for an accused person on a rape charge will not invoke section 227(2) on the same grounds as S v Zuma, in the regional courts that are bound by the precedent?

Results

Conclusion