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Professor Pierre de Vos has accused me of "double standards and hypocrisy" because of the way I am dealing with allegations of marital infidelity and sexual harassment against MEC for Community Safety, Lennit Max. De Vos notes that I have been highly critical of revelations regarding President Jacob Zuma's infidelity which led to the birth, outside of marriage, of his 20th child. Why have I not been equally critical of Max, de Vos asks.

Many other people have asked me the same question. I take this opportunity of sending them my answer to Professor de Vos, through the medium of this newsletter.

The first reason that the Zuma and Max cases are entirely different is because there is a difference between a fact and an allegation. The entire edifice of our law is based on separating the two.

Allegations may be true. But they may also be vexatious, frivolous, driven by hidden agendas or part of a smear campaign. That is why our law assumes that people are innocent until proven guilty.

No-one is disputing the facts in the Jacob Zuma matter. Early in 2009, he impregnated his friend's daughter. This means he had unprotected sex with her. The date of conception fell between two of Jacob Zuma's marriages. The baby was born shortly before President Zuma announced his engagement to another woman who will be his sixth wife. All this is "common cause" as they say in law.

In contrast, the allegations surrounding Lennit Max are highly contested. The allegations were initiated by Max's former media officer, Julian Jansen, who at the time faced a disciplinary hearing which resulted in his dismissal and whose case is now on appeal. Jansen alleged that Max harassed two women in his Ministry. The question arises: why didn't Jansen raise this matter at his disciplinary hearing when it could have been subjected to cross-examination? Why did he only raise this afterwards? Both women strenuously deny these allegations, as does Max. In the circumstances, it is impossible to treat them as if they are proven facts.

In the middle of this polemic, Ms Belinda Petersen, a former junior employee of the Police Services, emerged. She claimed to have had sex with Lennit Max while he was representing her in a disciplinary case on charges of insubordination. Again, Max strenuously denies this. His account is the direct opposite of her version. He says that Petersen made sexual advances to him, after which he withdrew from her case. He has produced an affidavit from a colleague about previous cases in which Ms Petersen has apparently made unfounded allegations of sexual harassment against other police officers. Again, the question arises: if Ms. Petersen believes she was violated why did she never submit a complaint or lay a charge so that their conflicting versions could be tested in a proper forum.

Until the allegations have been separated from the facts through a proper legal process, it is impossible to work out what happened, let alone take decisive action.

De Vos is correct when he says that an allegation of a senior official having sexual relations with an employee is an issue that would always merit public scrutiny.

It certainly merited my scrutiny. This is why I called in the two women who were alleged to have been harassed, and discussed the matter with them. If they deny it, how can I accept a third party's version? In fact, the women told me they believe the allegations may be part of a smear campaign.

As for the alleged affair with Ms Petersen: Lennit Max was not an official in the police force during 2007. His term as commissioner came to an end in 2003 -- four years before he represented Ms Petersen at the hearing. And Ms Petersen waited for another three years after that before she told her story to the Son newspaper. The timing, coming shortly before the Provincial Congress at which Max is a candidate for the provincial leadership, cannot automatically be discounted as a coincidence.

In this kind of context, is it fair to drive this issue in the public domain without establishing the facts? Because there is a difference between an allegation and a fact, the Max matter is profoundly different from the Zuma matter.

But even in cases where marital infidelity is indeed an established fact, some cases cause a greater public outcry than others. If one looks back over the past three decades, there are many revered leaders, from a range of political parties, who have acknowledged sexual relationships outside of their marriages. Some made waves. Others never caused a ripple. The question is: Why are some scandals more scandalous than others?

The answer is contextual.

Let's take the Zuma matter. If an extra-marital relationship involves public hypocrisy, lies or broken promises, it registers higher on the scandal scale. We all know that President Zuma's situation involved all three. After his rape trial in 2006, he apologized to the nation for having unprotected sex, and promised to mend his ways. Almost two-thirds of South Africans subsequently elected him President, without knowing that he had broken his promise even before the election date.

On 1 December 2009 he addressed the nation on World Aids Day, stressing that personal responsibility and change in sexual behaviour were the only viable ways of stopping the HIV pandemic. It later emerged that the daughter from his extra-marital relationship was born shortly before he made that speech. When politicians do not practice what they preach, it also registers higher on the scandal scale.

When they resort to sophistry to justify their actions, the scandal only multiplies. This is what happened when President Zuma played the "culture card" and said that his culture justified his behaviour. Experts in Zulu culture immediately slated this claim, saying that no culture, polygamous or otherwise, justified such actions. Indeed, only weeks earlier, President Zuma had promoted polygamy saying it was better to have multiple legalized relationships than to cheat on your monogamous wife. As he was saying this, he knew he had been cheating on his wives.


Contextual factors either aggravate or mitigate any kind of scandal. Without in any way condoning marital infidelity, it is clear that contextual factors are the reason why some "affairs" make waves, and others remain below the surface. And if it turns out that Lennit Max has been lying to me, his context will change dramatically.

In conclusion the reason I have approached the Zuma and Max issues differently is because I recognize the difference between an allegation and a fact. And it is because I critically evaluated the context in each case. This is what they teach you to do in law school. It is not double standards and it is not hypocrisy.