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complainant’s mother. The nurse, who testified in support of the State’s case, stated
that she had asked both the complainant and her mother about the date on which
the rape had occurred and they said that they did not know. It must be borne in mind
that the nurse saw the complainant and her mother during July 2006, much closer to
the date of the alleged incident. The trial appears to have been conducted between
August 2008 and the first half of 2011. A further unsettling feature of the
complainant’s testimony in relation to the time during which the incident is alleged to
have occurred is that when she was asked how early in the morning it had
happened, she said: ‘I do not remember’. She also said that there was no one on the
streets. One would have expected the obvious answer to be the time during which
the complainant was usually fetched to be taken to school.
[41]
What is set out above is a varied date span across which the appellant had to
conduct his defence without an amendment having been made to the charge sheet
in terms of s 86(1) of the CPA. Furthermore, no thought was given to s 92(2) of the
CPA which deals with time variances between the charge sheet and the evidence.
Section 92(2)(a) raises the question of prejudice that might be suffered by an
accused. With reference to the above it cannot, in my view, be said that ‘on the
whole’ the complainant was consistent about when the incident occurred. Given the
inconsistencies, I fail to see how it can be said that the time period within which the
offence was committed was ‘clearly circumscribed’. It becomes even more
inconsistent when one compares the complainant’s evidence to the testimony of the
doctor and the nurse. It cannot simply be excused on the basis that there was a
‘momentary lapse’ on the part of the complainant. The problems surrounding the
date of the occurrence of the event are but one aspect to be taken into account in
the assessment of the complainant’s credibility.
[42]
It is important to consider a little more closely the circumstances leading up to
the complainant’s identification of the appellant as the person who had raped her.
The complainant testified that, until her mother took her to the clinic, she had not
reported the rape to anyone. Her mother’s motivation for taking her to the clinic so
that she could be examined was the report by the neighbour that the appellant had
visited the child at the house in her absence. As set out in the judgment of Dambuza
JA, that incident was connected by the complainant’s mother to the prior gift of the
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