Ferocious cross-examination of Zondi forces us to question criminal justice system

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The high court in Port Elizabeth has been hearing evidence in the case of televangelist pastor Timothy Omotoso. 22-year-old Cheryl Zondi was the first victim to testify in court that she was groomed and raped by the pastor when she was only 14. After her courageous testimony she was cross-examined by Peter Dauberman, Omotoso’s defence counsel. His ferocious tearing into Zondi’s testimony has provoked outroar. Anthony Egan suggests that the public rage denotes more “a loss of faith” decrying the present state of the criminal justice system than necessarily an attack on an unforgiving line of questioning by a seemingly insensitive advocate — questionable as that may be.

The defence’s examination of witness Cheryl Zondi in the trial of Pastor Timothy Omotoso in Port Elizabeth this week has generated a storm of protest both in public and on social media. Observers objected furiously to Advocate Peter Dauberman’s line of questioning, which was seen as re-traumatising the witness, who alleges she was raped by the pastor when she was fourteen.  The trial highlights the many legal difficulties in trying cases of rape and sexual assault, raises questions about how lawyers conduct themselves in court, and brings home many questions about our criminal justice system.

Let me illustrate my point with a little bit of recent history.

Without witnesses or forensic evidence, rape and sexual assault cases are notoriously hard to prove. Allegations without such evidence, even those made shortly after an alleged incident, amount in effect to a ‘He said, she said’ scenario.

We saw this played out most dramatically in the 2006 trial of former President Jacob Zuma, who was ultimately acquitted of the charge of raping Fezekile Ntsukela Kuzwayo, whose identity was protected in court by the alias Khwezi.

Under the Roman-Dutch legal system, a person accused of a crime is deemed innocent until proven guilty beyond reasonable doubt. Other legal systems presume guilt till proven innocent.

In the Zuma case, where the former president freely admitted to having had sex with ‘Khwezi’ the central issue — that the sex was non-consensual — could not be proved.

Zuma was acquitted, to the delight of his many supporters and the frustration of a swathe of gender violence activists and, no doubt, many of his political opponents.

The difference between the Zuma case and the present one is that the late Ms Kuzwayo was an adult.

Cheryl Zondi testified that she was fourteen when Omotoso allegedly raped her, below the age of consent to sexual relations according to South African law. All the Court needs to establish is that Omotoso had sex with her, consensual or otherwise, and he can be convicted at very least of statutory rape.

All questions regarding her consent are thus irrelevant, as are questions regarding why she didn’t phone someone or call for help. And though I am not a lawyer, were I in Advocate Dauberman’s position I would never have asked the question. Apart from traumatising the witness, it could suggest to some judges a virtual admission that, consensual or not, Omotoso had sex with Zondi, a minor.

One may object that this happens all too often, that rape victims are triply traumatised — first when raped; second when reporting it; third when testifying.

There is widespread evidence of the lack of forensic equipment available to collect actionable evidence — and the callous indifference of many police when approached by an alleged rape victim. If the case finally gets to trial — a big ‘if’, the crime statistics reveal — the witness is frequently badgered and bullied by the defence counsel.

Is it surprising then that relatively few rape victims come forward?

Nor should it surprise anyone that the reactions to this case this week have been so strong. It reflects the seething anger many feel about a situation in South Africa that many feel has gone too far. But while eminently reasonable, anger in itself does not change the situation.

Nor do quick-fix emotional ‘solutions’ help. Mob justice, ‘guilt by allegation’ or the presumption of guilt till proven innocent is not part of our criminal justice system. If it is to be just and effective, the latter system requires extensive and intense investigations before going to trial. Moreover it can be misused in many ways, from getting at political or business opponents, through revenge on spurned lovers to attention-seeking by the mentally unstable.

No, a sound and solid juridical process is essential to punish the guilty, protect the innocent and give closure to the victim and the victim’s family. On paper at least, our criminal justice system can do this.

In the case of rape or sexual assault, it must start with victims reporting and evidence collection to build a solid case. Victims must report and their allegations must be investigated. Investigators must take all cases seriously, putting aside their prejudices if they have any. Specialists among police in this field must be properly trained and deployed with the right equipment to conduct prompt investigations. Suspects must be interrogated, investigated and based on evidence charged and brought to trial.

In court too there needs to be procedures properly adhered to. Defence lawyers must be able to cross-examine witnesses in such a way that their clients get a fair trial but judges need to see that lines of questioning are not intimidatory or simply designed to discredit witnesses’ character. Prosecutors need to have evidence at hand.

From my limited knowledge of the South African criminal justice system, all these things are in place in principle. They just need to be better used.

I suspect the social media storm in the Omotoso trial is as much about public loss of faith in the criminal justice system as it is about objections to intrusive questions in court. This loss of faith is everybody’s concern. Unless confidence in the whole criminal justice system is restored, the result might well be effects similar to the public’s loss of faith in the public service and service delivery.


© Spotlight.Africa 2019

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* The opinions expressed here by Spotlight.Africa contributors and editors are their own and not official statements of the Society of Jesus in South Africa or of the Catholic Church unless explicitly stated.

 

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Ferocious cross-examination of Zondi forces us to question criminal justice system