By: Javu Baloyi
In the wake of the appearance of Cheryl Zondi, the first witness, at the Timothy Omotoso alleged rape trial, opinions are divided in so far as the line of questioning by defence lawyer Advocate Peter Daubermann. Many of those opinions believe the defence lawyer Adv. Daubermann’s line of questioning, was insensitive. This is precisely what the Commission for Gender Equality (CGE) has been raising particularly in rape cases wherein survivors suffer secondary victimisation due to the nature of the questions being raised.
Section 166 of the Criminal Procedures Act gives rights to the accused to cross examine witnesses. Such rights are limited, however, by the interpretative duty of the defence to ensure that cross-examination, the basic rights of witnesses are not encroached upon. The Criminal Procedure Act, further forbids questions in a rape case related to previous sexual conduct, unless the judge grants specific permission. Juxtaposed that with Adv. Daubermann’s over the top questioning, even going as far as want to establish if consent was given. No rationale thinking lawyer can ever ask if Zondi had consented to sex when she submitted to his requests for intercourse. Knowing very well that she was just 14 years old when the alleged abuse started.
It should be borne in mind that submission is not consent, and that whether Zondi screamed or not didn’t determine whether or not the act was rape. I strongly believe that there is a greater risk that the trial could prevent women from coming forward, Zondi’s strength while handling Daubermann’s tough questions could also empower women.
A question about how deeply Zondi was penetrated was utterly wrong and irrelevant. Often, we ask ourselves why survivors of rape withdrew cases. It is precisely due to this kind of questioning that makes women relieve the trauma and abuse that they endured over the period of time. Equally, our police stations are not victim friendly and the insensitivity starts at the police station where survivors are asked the nature of clothes they were wearing at the time or rape or they were virgins. It begs that question if all those irrelevant questions had to do with act of rape took place or not.
I have always argued that even if the intention is to seek justice by laying women bare in courts, the same justice seeking mechanisms should not allow prejudice and patriarchal (male centred view) nuances to find expression in the cause of seeking the truth. Zondi’s resolute whilst giving testimony and her bravery should be commented. It is for this reason that the Department of Justice and Correctional Services should consider establishing Sexual Offences Courts. These courts will deal only with sexual offences services to survivors. It is my view that these courts with reduce the trauma of a survivor by preparing and debriefing them for court, speed up cases and they will be increased reporting of sexual offence cases as the personnel would be better skilled to handle to understand their nature.
I am mindful that trials are inherently confrontational, so some confrontation was inevitable, but what Adv. Daubermann was clearly retraumatizing or victimizing Zondi all over again. Adv. Daubermann should have kept his emotions and conduct in check at all times. Judge Mandela Makaula should be applauded for not allowing such kind of questioning as it was clearly secondary victimisation to Zondi.
It is against this backdrop that I believe Adv. Daubermann should be reported to the Bar Council of Lawyers, Magistrates Commission and the Office of Chief Justice should look at the manner in which Judges intervene in sexual offence cases. This would help to stop lawyers like Adv. Daubermann and his ilk from further victimizing the already traumatized survivors. Imagine this case was not broadcasted live and the CGE was not monitoring? What could have been of Zondi? Would she had gotten the same support from the media and society at large? Some questions are very difficult to answer but what I do know it is upon us as people to prevent such shenanigans from happening ever again.