49
obtain a wife in accordance with his traditional customs. After literally selecting
the complainant as the person he wished to marry he entrusted the
negotiations to his family and her uncles. An amount of lobola of R8000 (two
cows) was agreed to and the complainant was handed over to the appellant
and his family by the uncle of the complainant and taken to their village
whereupon she was groomed in the traditional amadaki as his young bride. He
testified that although the complainant initially did not appear to be “happy,”
after what he claimed to have been consensual sex between the two of them
she carried out her chores as a young bride and he was left with no reason to
think that she was an unwilling wife anymore. He claimed that he understood
that it was necessary in his custom for the complainant to have consented to
entering into the marriage. He likewise believed she was also required to have
consented to sexual intercourse with him.
[86]
Central to his defence at his trial however was the appellant’s claim that the
complainant had as a fact consented to their customary marriage and the
sexual intercourse between them. Moreover he claimed that she had willingly
relocated to Cape Town as his wife. The appellant had on his own version not
relied on a practice of ukuthwala that required any measure of coercion of the
complainant. He claimed though that due to the fact that her uncles and his
family had entered into the negotiations, and arrived at an agreement as to the
amount of the lobola that he paid, and because her family had willingly handed
the complainant over to him in marriage and returned her when she
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