Rape Trials and the Art of War

Last week South Africans were transfixed by the cross-examination of Cheryl Zondi, one of the complainants in the trial of Timothy Omotoso, a pastor accused of rape and trafficking. The country's criminal justice system is adversarial, meaning that it is designed around the logic of combat. Its battleground is the court room and language its weapon of choice. Cross-examination lies at the heart of this confrontation, with the prosecution and defence expected to fight it out vigorously until only the truth remains. But, as Cheryl Zondi’s time in the witness box made clear, truth can become a casualty of cross-examination, particularly when its tactics and grammar are used as an instrument of violence.

While court craft may resemble the art of war, this does not mean that legal practitioners are free to deploy cross-examination as a weapon. In Geerdts v Multichoice Africa (Pty) Ltd, heard in the Labour Appeal Court in 1998, Judge President John Myburgh wrote the following: "A court is entitled to disallow tedious cross-examination the only purpose of which would seem to be to wear down the witness and to induce him to ultimately make replies favourable to the cross-examiner as a result of fatigue."

"A proper cross-examination does not permit the gratuitous intimidation of a witness. A cross-examiner should not bully a witness by insulting him, browbeating him or adopting an overbearing attitude which admits of no contradiction by the witness of what is put to him. A cross-examiner should not unnecessarily ridicule a witness or taunt the witness or offend his sensibilities or provoke him to anger, or play upon his emotions in order to place him at an unfair disadvantage and incapacitate him from answering question to the best of his ability."

These comments were prompted by a cross-examination that ran to 480 pages (in contrast to the 43 pages devoted to the witness’ evidence in chief), consisted of between 2 500 and 3 000 questions (conservatively estimated) and lasted six days. According to the court, this length of time was in of itself an abuse of the witness. Cheryl Zondi, it must be pointed out, is fast approaching this mark.