11
[26]
Other contradictions in the evidence of the complainant pertain to whether the
complainant undressed herself or the appellant did and whether the threat to kill her
(if she told anyone about the incident) was uttered before or after the sexual
intercourse. Regarding the first, at some stage during cross-examination she testified
that the appellant undressed her before having sexual intercourse with her. She later
said she undressed herself. When she was confronted about the contradiction she
explained that she ‘forgot’. On the second issue, when she was first asked why she
did not resist she responded that the appellant had threatened to kill her with a
firearm. Later, when asked when, exactly, the threat was uttered she responded that
it was after the sexual intercourse. Thereafter she repeated that the threat came
after sexual intercourse.
[27]
The remarks made by the magistrate on the demeanour of the complainant
and her mother are relevant. He referred to the complainant’s immaturity at the time
of the incident and at the time of the trial. This, according to him, ‘emerged from the
manner in which she explained the events’. It is my view that her capacity to
understand and respond to questions must be considered in light of her progression
only up to Grade 5 at the age of 15 years at the time of the trial. According to the
magistrate the complainant had to be prodded to explain what happened. She was
reluctant to give details of the incident without being asked specific questions. She
‘just wanted to quickly explain the rape only’. The record reveals that she broke
down twice whilst giving evidence. The magistrate formed the view that the
complainant
exhibited
genuine
emotions
and
answered
questions
‘very
spontaneously’. He found, however, that despite spending an extended period of
time in the witness stand, the complainant did not appear to exaggerate the incident;
instead she testified in a ‘very simple manner’.
[28]
I agree with his finding that despite the shortcomings in the evidence of the
complainant and her mother their evidence bears features of originality and
trustworthiness. For example, they both insisted that the appellant’s routine was to
fetch the complainant first and thereafter the other children. Their spontaneous
admission that at their home there was also a wadrobe and a stove that belonged to
the owners of the house as the appellant stated, while insisting that the appellant
specifically lent the television set to the complainant is significant. But their evidence
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