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Zuma's discharge bid denied

2006-03-29 15:16

Amy Musgrave and Jenni Evans

Johannesburg - The Johannesburg High Court on Wednesday denied Jacob Zuma his application to be discharged on a rape count.

The hearing was postponed to Monday.

Judge Willem van der Merwe said he could not agree that evidence led by the State was of such poor quality that it could not be accepted.

"The accused is not entitled to his discharge."

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

Zuma's defence counsel Kemp J Kemp had asked the court to rule evidence led by two policemen inadmissible.

Van der Merwe said he would decide at the end of the trial whether this should be the case.

Summing up before leading to his decision to turn down the former deputy president's application, Van der Merwe quoted a considerable number of legal precedents presented by Kemp, then said: "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?"

Witnesses Van der Merwe said that in deciding this question, the credibility of witnesses played a limited role.

"Only if evidence of the witnesses was of such poor quality that there is no possibility that it can be accepted, can it be ignored."

Van der Merwe noted that Kemp, in an able, well-prepared and persuasive argument, which concentrated on mens rea, asked him to find that evidence was of such poor quality.

"In strong argument he submitted that a court cannot conclude that the State had proved mens rea beyond a reasonable doubt.

"In the first, I cannot agree that the evidence led by the State is of such poor quality that it cannot be accepted.

"I can therefore not ignore the evidence so far led."

Van der Merwe continued: "I am of the opinion that there is evidence before me that if nothing more is said, a finding of mens rea to rape can be made."

Zuma allegedly raped a close family friend at his Johannesburg home on November 2 last year.

He has testified that he had consensual sex with the woman.

- SAPA

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