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

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.