Justice is no lady where cross-examination is the hammer and the witness the anvil
Relentless browbeating by rape accused’s lawyer is a form of intimidation
● SA’s criminal justice system is adversarial, meaning that it is designed around the logic of combat. Its battleground is the courtroom 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 is making clear, truth may well become a casualty of cross-examination, particularly when its tactics and grammar are used as an instrument of violence.
While court craft can resemble the art of the war, this does not mean that legal practitioners are free to deploy cross-examination as a weapon. In Geerdts v MultiChoice Africa, heard in the labour appeal court in 1998, judge president John Myburgh wrote:
“A court is entitled to disallow tedious crossexamination, 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 crossexaminer 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 to the best of his ability.”
These comments were prompted by a crossexamination that ran to 480 pages (the witness’s evidence-in-chief was 43 pages), consisted of between 2,500 and 3,000 questions and lasted six days. According to the court, this length of time was in itself an abuse of the witness.
Cheryl Zondi, it must be pointed out, is fast approaching this mark. On Monday she returns for a fourth day of cross-examination.
Language and grammar are central to the stratagems and manoeuvres of cross-examination. Grammar in this context refers to the tightly controlled way questions to witnesses are structured, ordered and worded. This ensures that testimony is not the give and take of dialogue but a self-serving monologue by the defence — one in which the complainant loses authority over the interpretation of her experiences through being made to mouth the accused’s version of reality.
Examples from the trial best illustrate these different language strategies, with one of the most common being the proposition.
A proposition is a suggestion to the complainant that there is an alternative to her truth. It typically begins with “I put to you”, as in “I put it to you that you are fabricating your evidence”. These sorts of speculation were then rapidly transformed into definitive statements of fact (or declaratives) such as “You are lying”, or “You are a good actress”.
A good portion of advocate Peter Daubermann’s cross-examination consisted of declaratives posing as questions: “You were prepared to let him rape you?” as well as: “You basically consented? You didn’t protest against him? Every time you went to his room, you knew what to do?”
Worded in this way, they took on the appearance of truths, rather than inventions.
This repeated use of “you” also began functioning as a form of accusation: “You were in a room alone with a man. You say you were scared. What did you think was going to happen? Didn’t you wonder why the door was locked?”
The words used in each of these extracts is highly calculated and strategic. They imply the exercise of choice: to go to a room, to know what to do in that room, and to not protest at being in that room.
“Why did you not scream, ma’am? You knew there were other people in the house, they would hear you?” This last question contains a presupposition, or taken-for-granted “fact”, about “real” rape victims — that they cry for help and rescue. When this pairing of “questionable” inaction at some points is then contrasted with the exercise of choice at others, the implication is that Zondi is not a real victim.
This grammar can be used to distort rape complainants’ actions to devastating effect. Indeed, it is central to their experience of trials as processes where their behaviour, rather than that of the accused, is made the real crime. When this grammar is coupled to tactics that force complainants, again and again, to relive experiences they never want to remember, courts are made sites of domination.
But in the way she has withstood Daubermann’s attempts to undermine and discredit her testimony, Zondi has shown how they can also be transformed into sites of resistance.
For better or for worse, an adversarial system is what we have. It must be made to work for complainants because trials are not intended to be ordeals, afflictions and tribulations. Heroism is not a reasonable expectation of all rape complainants either.
The prosecutor in this matter needs to sharpen his tongue and go to war. Rape complainants must know that when they go to court they will be defended.